Rule. The rule is made returnable forthwith. Mr. J.M. Murkute, learned Advocate waives service for respondents no.1 and 2 and the learned APP waives service for the respondents no.3 to 5. With the consent of both the sides, the matter is heard finally at the stage of admission.

2. The learned advocate for the petitioner vehemently submits that the learned Magistrate had rightly directed investigation under Sub Section 3 of Section 156 of the Code of Criminal Procedure on an application filed by the petitioner bearing No. OMCA No. 522/2015 by order dated 8/6/2015 but has committed a gross error which has resulted in miscarriage of justice when the self same Magistrate without having any power under the Code of Criminal Procedure recalled his earlier order by the impugned order dated 15/10/2015. The Magistrate had no such jurisdiction to recall his own order and has committed gross illegality. He referred to and relied upon the judgment of the Supreme Court in the case of Subramanium Sethuraman Vs. State of Maharashtra and another, (2004) 13 SCC 324 and Iris Computers Limited Vs Askari Infotech Private Limited and others, (2015) 14 SCC 399.

3. The learned advocate for the petitioner further pointed out that even the learned Additional Sessions Judge by the impugned order dismissed the revision without appreciating the law that the Magistrate had no jurisdiction and power to recall his own order. Therefore, even the impugned judgment passed by the learned Additional Sessions Judge dismissing the revision suffers from gross illegality.

4. As far as factual aspects are concerned, the learned Advocate for the petitioner submitted that the two Courts below had failed to appreciate the facts and circumstances and had misdirected themselves which has resulted in miscarriage of justice. They failed to consider the distinction between the facts in the two complaints filed by the petitioner. In the earlier complaint, he had alleged about the respondents no.1 and 2 having committed misappropriation of specific items which were not the part and parcel of the second complaint which was solely based upon a specific item of misappropriation of Rs.10,000/-. There was apparently no duplication. The two complaints were in respect of different items of misappropriation and still the two Courts below failed to take into account such distinction and under the misconception that the misappropriation alleged in both the complaints was the same have passed the orders which has the consequence of dismissal of the complaint.

5. The learned advocate for the respondents no.1 and 2 submitted that there cannot be any dispute about the trite legal principle that the Criminal Courts do not have power to recall their own order since no such provision is available under the Code of Criminal Procedure. However, the learned Magistrate though has set aside his own order, he has clearly demonstrated that the order procured from him directing investigation under Sub Section 3 of Section 156 of the Code of Criminal Procedure was a fraud. Material facts and circumstances were suppressed and the order was obtained. Therefore, the two Courts below have concurrently held that it was a fraud on the Court and the order was non est and while directing that the order passed by him on 8/6/2015 was set aside, the Magistrate was merely declaring the consequence of the fraud and cannot be said to have exercised a jurisdiction which did not vest in him.

6. I have carefully gone through the papers with able assistance of the learned advocates of both the sides. Though it sounds pessimistic, in my considered view, there is no apparent illegality committed by the two Courts below. They have consistently demonstrated as to how the material facts were not disclosed by the petitioner while lodging the OMCA No. 522/2015 and as to how the order was procured from the Magistrate on 8/6/2015 directing an investigation under Sub Section 3 of Section 156 of the Code of Criminal Procedure.