JUDGMENT :

1. The present criminal revision under Section 397 (1) read with Section 401 Cr.P.C. has been instituted by Atique Ahmad, revisionist against the order dated 17.11.2022 passed by the Additional Sessions Judge/Special Judge(MP/MLA), Allahabad in Criminal Revision No.249 of 2008, whereby the learned revisional court allowed the criminal revision filed by the State against the order dated 7.3.2008 passed by the Additional Civil Judge/Judicial Magistrate, Court No.6, Allahabad.

2. The facts of the case, in brief, are that on 5.7.2007 Sri Ompal, a member of the Zila Panchayat, Allahabad lodged FIR No.270 of 2007, under Sections 147, 148, 323, 341, 342, 364, 504 and 506 IPC and Section 7 Criminal Law Amendment Act against the revisionist, a sitting Member of Parliament and others. The investigation of the said offence was conducted by Sri K.K. Mishra, Station House Officer.

3. During the course of investigation, efforts were made by the Investigating Officer to arrest the accused-revisionist, however, the accused could not be arrested nor they surrendered before the trial court. Warrants were issued against the accused and, thereafter, proceedings under Section 82/83 Cr.P.C. were undertaken. However, the accused could not be arrested nor they surrendered before the trial court within the prescribed time. In view thereof, an FIR under Section 174A IPC was registered on 26.8.2007.

4. The Investigating Officer after investigating the offence, filed an application for submitting the charge sheet and prosecuting the accused, including the revisionist. Learned Magistrate granted permission for submitting the charge sheet and, thereafter, charge sheet was submitted on 13.9.2007 by the Investigating Officer in the court. One application was also filed along with the charge sheet stating that as per the provisions of Section 195 Cr.P.C. read with Section 340 Cr.P.C., the court may send the charge sheet in its signature to the competent court for taking cognizance. The trial court without deciding the application dated 13.11.2007 filed by the Investigating Officer, took cognizance of the charge sheet on 16.1.2008 and ordered for preparing the copies of the documents.

5. co-accused Aizaz Akhtar surrendered before the trial court and filed an application for bail. The said accused was taken into custody and his application for bail was rejected. Thereafter, his bail application was allowed by the Sessions Court. The present revisionist was arrested by the police and he was sent to judicial custody. Co-accused Ashraf @ Kale was still absconding.

6. It appears that an application came to be filed after change of the presiding officer in the court of Additional Civil Judge/Judicial Magistrate, Allahabad against the order dated 6.1.2008 and the presiding officer as siting in appal against its own order, held that the objection could be entertained on behalf of the accused against the cognizance taken by the court when the objection would go at the bottom of the jurisdiction of the court. Learned Magistrate has held that provisions of Section 195 Cr.P.C. could not have been evaded and the order of taking cognizance dated 16.1.2008 was without jurisdiction and void ab initio.

7. It was further held that since the order of cognizance was void ab initio and remand under Section 309 Cr.P.C. would no longer be accorded and the application for remand was rejected vide order dated 7.3.2008.

8. Aggrieved by the said order, the State has filed Criminal Revision No.249 of 2008 and the learned revisional court has held that vide impugned order, the learned Magistrate had reviewed its own order of taking cognizance. It is well settled that the criminal court does not have power to review its own order. Learned revisional court had set aside the order dated 7.3.2008 impugned in the present revision.

9. Heard Sri Daya Shanker Mishra, learned Senior Advocate assisted by S/Sri Abhishek Kumar Mishra and Shadab Ali, learned counsel for the revisionist and Sri Manis