The main legal point established in the judgment is the interpretation of the provisions of Section 8(1) and Section 14 of the FERA and the limitations on the powers of the Magistrate under Section 245(2) of the Code.

G. P. Mittal, J.— (ORAL)

1. By virtue of this Petition under Section 482 of the Code of Criminal Procedure (“the code”), the Petitioner M.G.Attri (Chief Enforcement Officer) seeks setting aside of the order dated 26.11.1998 passed by the learned Additional Chief Metropolitan Magistrate (“A.C.M.M.”) in the Complaint Case No.75/1/1996 instituted by the Petitioner against the Respondent and one Mohd. Ameerudeen for an offence punishable under Section 8(1) read with Section 14 of the Foreign Exchange Regulation Act, 1973 (the FERA) whereby on an Application under Section 245 (2) of the Code, the Respondent was discharged on the ground that the complaint against him is groundless. By virtue of a Revision Petition under Section 397 of the Code, the Petitioner challenged the order dated 26.11.1998 before the learned Additional Sessions Judge (“the learned ASJ”). The Revision Petition came to be dismissed by the learned ASJ by an order dated 08.03.2007.

2. The impugned orders are challenged on the following grounds:-

i) The Magistrate having taken cognizance issued the process on a complaint filed by the Petitioner. It was obligatory on the part of the learned A.C.M.M. to have first given an opportunity to the Petitioner to adduce its evidence as provided under Section 244 of the Code and only then to determine whether the Respondent is to be charged with the offence or he was liable to be discharged. Reliance is placed on Adalat Prasad v. Rooplal Jindal & Ors., (2004) 7 SCC 338 and Subramanium Sethuraman v. State of Maharashtra & Anr., (2004) 13 SCC 324.

ii) The learned A.C.M.M. acted in hot haste in holding that the charge against the Respondent was groundless. The Petitioner relied on some documents and the Criminal Complaints No. 28/1 and 63/1 filed against the Respondent apart from the evidence on record. The learned A.C.M.M. ought not to have discharged Respondent No.2.

3. There is no dispute about the proposition of law that a Magistrate or for that matter an ASJ does not enjoy any inherent powers as those conferred on a High Court under Section 482 of the Code. Admittedly, the Magistrate and the “ASJ” do not have any power of review. In Adalat Prasad, a three Judge Bench of the Supreme Court held that against an order of summoning (in a summons case) the only remedy available, to an aggrieved accused, is the extraordinary remedy available under Section 482 of the Code and not by an Application to recall the summons or to seek discharge. The law laid down in Adalat Prasad was approved by a three Judge Bench decision in Subramanium Sethuraman, and the contention raised that Adalat Prasad required reconsideration, was rejected. Para 14 of the report of the Supreme Court in Subramanium Sethuraman is extracted hereunder:-

“14. In Adalat Prasad case this Court considered the said view of the Court in K.M. Mathew case (1992) 1 SCC 217 and held that the issuance of process under Section 204 is a preliminary step in the stage of trial contemplated in Chapter XX of the Code. Such an order made at a preliminary stage being an interlocutory order, same cannot be reviewed or reconsidered by the Magistrate, there being no provision under the Code for review of an order by the same court. Hence, it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order. In that line of reasoning this Court in Adalat Prasad case held:

“Therefore, we are of the opinion, that the view of this Court in Mathew case that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law.”

4. The instant case, however, is not a summons trial case. Admittedly, it is a warrant trial as the offence with which Respondent No.2 was being prosecuted was punishable with imprisonment which could extent to 7 years and also with fine. Although, the learned Senior Counsel for the Petitioner tried to convince this Cou