Full Judgment
G.M. Lodha, J.
1. This is a Criminal Revision under Section 397 read with Section 401, Cr.P.C, challenging the order of the Munsif and Judicial Magistrate (1), Jodhpur dated 9-11-77 in Criminal Original case No. 1100 of 1977 under Section 9 of the Indian Opium Act.
2. One Jagdish Prasad Excise Inspector lodged an F.I.R. at 7 P.M. on, 2-11-74 at P.S. Jhanwar. It was alleged that a Car bearing No. 6212 was seized and on search it was found that it contained substance like opium in its diggi. However, during in vestigation, the Chemical Examiner reported in negative for opium. A final report was submitted. The Magistrate concerned was, however, not satisfied and directed the Assistant Public Prosecutor to produce the seized material. A sample was then taken by the Magistrate and it was ordered to be sent for re-examination.
3. This order was challenged before this Court under Section 482, Cr.P.C. and the petition was accepted on 20-10-76 Vide S.B. Criminal Misc. Petition No. 295/76 (1976 R.L.W. 539). The order of the Magistrate was quashed.
4. The Final Report was accepted, and the petitioner Daulatram was discharged.
5. The matter then came up for disposal of the property, and the Magistrate directed that re-examination of the sample should be done and sent it for chemical examination to the Excise Officer, Jodhpur. The Chemical Examiner opined that the sample was opium and it contained 0.5% of Morphine.
6. On receipt of this report, the learned Magistrate recalled his order and took cognisance of the offence and ordered the return of papers to the A.P.P. for prosecution of the case. This order of the Magistrate has been challenged in this revision petition.
7. Mr. Singhvi learned Counsel for the petitioner has submitted that once the final report is accepted and the accused is discharged, a Magistrate has got no power to review his own order. Reliance has been placed on the judgment of this Court reported in Mangilal v. State 1979 WLN(UC) 188 According to this judgment such an order is judicial order and cannot be recalled. Mr. Singhvi invited my attention to the decision of the Hon'ble Supreme Court in Bindeshwari Prasad Singh v. Kalisingh 1977 Cri LJ (SC) 42, and argued that the Magistrate is not empo vered to remove have or recall the order passed by him, as subordinate courts have got no inherent powers.
8. Mr. Singhvi submitted that it is not the business of the Court to collect evidence for a party and by sending the sample for reexamination, this is what precisely has been done.
9. Finally Mr. Singhvi submitted that once the High Court has quashed the order of the Magistrate by which the sample was being sent for re-examination, the Magistrate his got no powers to act in contravention of the order of this Court by sending the sample for re-examination in the garb of disposing of the property. It was argued that the law is well settled that what is not permissible directly can never be done indirectly.
10. My attention was invited to the decision of the Supreme Court in State of U. P. v. Singhara Singh : [1964]4SCR485 and reliance was also placed on the judgment of Thanaram v. State of Rajasthan 1973 RLW 621 wherein it has been observed as under:
Rule of law means that act of authority, though technically and legally correct, should not be violative of the manner and procedure of law-sudden and abrupt use of discretionary power ignoring all steps of proceedure and necessary consultation violative is of the rule of law.
11. The learned P.P. has contested the revision petition and controverted the submissions of the learned Counsel for the petitioner, but could not assist the court by submitting any decision to the contrary, even though after conclusion of the arguments both the learned Counsel were allowed to submit written arguments. The learned Counsel for the petitioner submitted written arguments and the authorities relied upon, but the learned P.P. failed to avail of this opportunity.
12. A perusal of the order of the learned Magistrate shows the judgment of this Court.
13. A perusal of the order of the learned Magistrate shows that the judgment of this Court was not in the knowledge of the learned Magistrate at the time the order dated 9-11-77 was passed. In the very uature of things. this order was passed in the absence of the parties. In view of this, it would be in the interest of justice of the Magistrate himself is required to first consider the implication and impact of the judgment of this Court, and to decide whether in view of this judgment he can take cognizance of the case. He should also consider whether he cannot take cognizance of the case, and the report of the Chemical Examiner can be used for the limited purpose of disposal of the properly.
14. I am not inclined to adjudicate the various points raised by Mr. Singhvi at his stage, because it would be unfair to the Magistrate who has no chance of considering the objections which are now being raised. It would be open both to the prosecuting agency and the learned Counsel for the accused to put up their respective view points and the law on the subject before the Magistrate in addition to whatever has been argued here. The Magistrate concerned would be free to decide the matter one way or the other according to law after hearing both the parties and then pass a fresh order.
15. The result of the above discussion is that this revision application is accepted to the limited extent that before proceeding further in the case, the learned Magistrate would first consider the judgment of this Court dated 20-10-76 by which the earlier order was quashed under Section 482, Cr.P.C. Daulatram v. State of Rajasthan 1976 RLW 539, and then pass a fresh order after hearing both the parties, and while doing so consider all the objections and contentions which are raised by either of the parties.