The judgment establishes the principle that a Magistrate has neither the power to review nor recall an order, and has no inherent power to do so.

1. A complaint case was filed by respondent No.2 as proprietor of M/s. Tridev Construction & Consultants against the two petitioners and one S.K. Agarwal alleging that on 8th May, 2006 the University had floated a tender vide a newspaper advertisement for the purpose of renovation of toilets of SES Jawahar Lal Nehru University. The complainant had participated in the tender and thereafter an agreement was entered into between the parties. However later he was informed by a corrigendum dated 28th February, 2007 that the rebate quoted in tender document dated 24th May, 2006 was inadvertently taken as 1.25% instead of 21.25% and the said mistake was due to an error. Complainant protested in respect of the corrigendum and alleged that the documents have been forged and fabricated by the petitioners and S.K. Aggarwal. He filed a complaint with the SHO PS Vasant Kunj on 30th April, 2007 on which no action was taken. Hence he filed a criminal complaint before the learned Metropolitan Magistrate seeking directions to the SHO to lodge the FIR. The said complaint was listed on 3rd May, 2010 before the learned Metropolitan Magistrate when none appeared for the complainant/respondent No.2 and was adjourned to 11th May, 2010. Even on 11th May, 2010 despite the matter having been passed over twice and taken up at 3.35 PM on the third call, none appeared on behalf of the respondent No.2/complainant. Hence the complaint was dismissed in default.

2. On an application filed by the respondent No.2 seeking restoration of the complaint, learned Metropolitan Magistrate vide order dated 17th May, 2010 restored the complaint and vide order dated 4th May, 2011 directing SHO PS Vasant Kunj (North) to register FIR against the petitioners pursuant whereto FIR No.115/2011 under Sections 420/468/471/120B IPC was registered on 11th May, 2011. Immediately thereafter the petitioners filed the present petition wherein this Court vide order dated 26th May, 2011 directed stay of the proceedings in the complaint case and FIR No.115/2011 under Sections 420/468/471/120B IPC registered at PS Vasant Kunj (North).

3. In the present petition, the petitioners challenge the two orders dated 17th May, 2010 restoring the complaint to its original position and the consequential order dated 4th May, 2011 directing registration of FIR. Challenging the order dated 17th May, 2010 learned counsel for the petitioners submits that the Magistrate had no power to review its order and restore the complaint. Thus the order dated 17th May, 2010 was beyond the jurisdiction of the learned Metropolitan Magistrate. Reliance is placed on the decision of the Supreme Court reported as (2004) 7 SCC 338 Adalat Prasad Vs. Rooplal Jindal & Ors. and of this Court reported as 44 (1991) DLT 508 United Decoratives (P) Ltd. Vs. Naipal Singh & State. It is further contended that while reviewing its order dated 11th May, 2010 the learned Metropolitan Magistrate did not even issue any notice to the petitioners and passed the impugned orders dated 17th May, 2010 and 4th May, 2011, thus violating the principles of natural justice. Since by the order dated 11th May, 2010 dismissing the complaint, a right had accrued to the petitioners, the same could not have been taken away without notice to the petitioners.

4. Learned counsel for the respondent No.2 on the other hand contends that there is a difference between review of the order and recall of the order. Since no order was passed on merits, the learned Metropolitan Magistrate did not review its earlier order and only recalled the order dismissing the complaint for technical reasons. It is contended that the power of the Magistrate under Section 156(3) Cr.P.C. are wide enough and it can pass all ancillary orders to effectively implement the said provision. Relying upon the decision of the Supreme Court in (2002) 7 SCC 726 Mohd. Azeem Vs. A. Venkatesh & Anr. it is contended that the Magistrate was unjustified in dismissing the complaint and there was