A Magistrate is not empowered in law to review or recall an earlier order passed by him, regardless of its legality or correctness.

Hari lal Agarwal, P. S. Sahay, JJ.

1. The petitioner has come to this court against an order dated 18.2.77 passed by the Chief Judicial Magistrate, patna, recalling his earlier order, dated 17.12.76 in the following circumstances. A case was started against the petitioner by the Collector of Customs under the provisions of the Customs Act, 1962 on the allegation that certain contraband articles were recovered from his possession. On 17.12-70 the petitioner filed a petition in the court below stating that the investigation in this case not having been completed within the period of six months, as provided under section 167 (5) of the now Code of Criminal Procedure, (hereinafter referred to as the Code) the investigation in question had got to be stopped and the petitioner be discharged from the case in question. The learned Chief Judicial magistrate allowed this prayer by his above order dated 17.12.76 and directed that the investigation of the case in question be stopped and the petitioner was discharged from the liability of this case. Later on, a petition was filed on behalf of the prosecution stating that the petitioner was wrongly diseharged under section 167 (5) of the Code by order, dated 17.12.76. It was contended on behalf of the prosecution that the offence said to have been committed by the petitioner, was, although, previously punishable only upto a period of 2 years, by a subsequent amendment in the year 1963, the period of sentence has been raised to 3 years and, therefore, the provision of section 167 (5) had no application to the facts of this case and, accordingly, the earlier order dated 17.12 76 passed by the learned Chief Judicial Magistrate under a wrong assumption of law that the case was covered by section 167 (5) inasmuch as the offence in question was punishable only upto a period of 2 years, was vitiated in law.

2. The learned Chief Judicial Magistrate, on a consideration of the facts and circumstances, by the impugned order dated 18.2.77, held that the earlier order passed by him was due to inadvertence "having not been posted with the correct position of law" and has got necessarily to be recalled. He accordingly allowed the prayer of the prosecution, recalled the order dated 17.12.76 and issued bailable warrant of arrest against the petitioner.

3. Long arguments were made on behalf of the petitioner to show that the order dated 18.2.77 passed by the learned Magistrate was invalid on merit also and notwithstanding the amendment of the year 1963 the offence still stood triable by the summary procedure and, therefore, the provisions of section 167 (5) of the Code would still apply to this case. The learned Counsel appearing on behalf of the opposite party, on the other hand, with reference to the various provisions of the Customs Act contended that a separate machinery was provided under the Customsact itself and, therefore, the impediment of section 167 (5)of the Code would have no application to this case.

4. We have examined the contentions advanced by the learned Counsel for both the parties, but as, in our opinion, the matter can be finally disposed of on an entirely different point, it is not necessary to advert to the rival contentions advanced on behalf of the contending parties.

5. Whatever might be the actual and correct position in law with respect to the application of section 167 (5) of the Code, the fact remains that rightly or wrongly the learned Magistrate had passed an order on 17.12.76 taking a view that in view of the provisions contained in section 167 (;.), the investigation against the petitioner could not proceed and he accordingly discharged him from all liabilities of this case. A question arises as to whether, even assuming that the said order was utterly erroneous, the learned Magistrate could recall the said order and pass the impugned order on taking a different view of the matter. The controversy now stands at rest by an authoritative decision of the Supreme Court