- (1.) THIS Criminal Revision has been preferred under Section 397/401 Cr. P.C. by the revisionists against the judgement and order dated 20.3.2009 passed by the Additional District & Sessions Judge, Court No.12, Moradabad in Criminal Revision No. 318 of 2008 (Smt. Firdaus Jahan vs. Tasleem and others) by which the order dated 20.9.2008 passed by the Additional Chief Judicial Magistrate, Court No.3, Moradabad in Case No. 284/9 of 2007 (Smt. Firdaus Jahan vs. Tasleem and others) has been set -aside and the trial court has been directed to afford opportunity to the complainant under Section 244 Cr.P.C. for adducing evidence and to decide the complaint on merits.
(2.) FEELING aggrieved with the said order, this revision has been preferred. Facts, in short, are that the above mentioned Case No. 284/9 of 2007 under Sections 323, 504, 506 I.P.C. was pending before the Court of Additional Chief Judicial Magistrate, Court No.3, Moradabad. On 27.8.2008 when the case was fixed for evidence of the complainant, she did not turn -up, and, therefore, the opportunity of the complainant for adducing evidence had been closed by the trial court. Thereafter, an application to recall the said order was filed by the complainant before the court concerned. Against the said application, an objection was also filed before the trial court on the ground that the criminal court has no jurisdiction to recall its order passed earlier. The trial court after hearing the parties observing that several opportunities have been given to the complainant but on 27.8.2008, she was not present to adduce the evidence, therefore, opportunity to adduce the evidence was closed and next date for hearing was fixed. On that date also, the complainant did not turn -up. With the aforesaid observations, the application to recall/ cancel the order dated 27.8.2008 has been rejected on 20.9.2008. The complainant challenged the said order dated 20.9.2008 in the aforesaid revision before the Additional District and Sessions Judge, Court No.12, Moradabad and the revisional court allowed the revision observing that where the accused have been summoned only on the basis of prima -facie case, then without examination of the complainant under Section 244 Cr.P.C. and without affording opportunity to the complainant to adduce evidence, the accused cannot be discharged under Section 245(2) Cr.P.C.
(3.) I have heard Shri Raj Kumar Khanna, learned counsel for the revisionists and Shri M.C. Tiwari, learned counsel for the opposite party as well as the learned AGA for the State, and perused the entire record carefully. According to Shri Raj Kumar Khanna, learned counsel for the revisionists the impugned order has been passed against law. The trial court has rightly observed that the criminal court has no jurisdiction to recall its own order. Therefore, the order closing the opportunity to adduce the evidence has rightly been passed by the trial court and there is no illegality in the said order. In support of his aforesaid submissions, he has placed reliance on the decision of the Supreme Court in the cases of Adalat Prasad vs. Roop Lal and another,2004 2 CAR(SC) 640and Subramanyam Seturaman vs. State of Maharashtra,2004 2 CAR(SC) 642.;