IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

O R D E R

S.B.CRIMINAL MISC. PETITION NO.688/2010

Uttam Prakash Soni & Anr. Vs. State of Rajasthan & Anr.

Date of order

:

4.7.2012

HON'BLE MR. JUSTICE SANDEEP MEHTA

Mr. Varun Gupta, for the petitioner.

Mr. A.R.Nikub, P.P.

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The instant misc. petition has been preferred by

the petitioners challenging the order dated 15.2.2010 passed

by the learned Additional Civil Judge (Jr.Div.) cum Judicial

Magistrate 1^st Class No.8, Jodhpur as affirmed in Revision by

the learned Sessions Judge, Jodhpur by his order dated

22.3.2010.

The petitioners are facing trial in the Court of the

learned Judicial Magistrate for the offences under Sections 16,

17, 17A, 17B, 18(a)(i)(vi)(b)(c), 18A, 18B, 22(i)(cca) punishable

under Sections 27(a), 28(b)(i), 27(b)(ii), 27(c), 27(d), 28, 28A

and 22(3) of the Drugs and Cosmetic Act, 1940. The case was

instituted as a complaint case for the offences falling in the

category of warrant cases. Thus, obviously before charge

could be framed against the accused, the learned trial Court

was required to record precharge evidence. It appears that by

inadvertence, the charge was framed against the accused

without recording precharge evidence. When the learned

Judicial Magistrate realised this error, by order dated

15.2.2010 the proceedings were recalled and the prosecution

was directed to lead precharge evidence. Thereafter,

precharge evidence has been led and the examination-in-

chief of the prosecution witness as a precharge evidence has

been recorded at the trial. The petitioners challenged the

order dated 15.2.2010 by filing revision and the learned

Revisional Court too has affirmed the order passed by the

learned Judicial Magistrate.

Learned counsel for the petitioners submits that

the learned Magistrate has no powers to recall his own order

and as such, the order dated 15.2.2010, whereby precharge

evidence has been directed to be led, is absolutely illegal.

Having considered the arguments advanced at the

bar and after going through the order impugned, it is evident

that the case for which the petitioners are facing trial, is a

warrant trial case instituted upon a complaint. Thus, recording

of precharge evidence was mandatory before charge could be

framed against the accused. Thus, the learned Magistrate

rightly, by the order dated 15.2.2010 has rectified the earlier

mistake, whereby charge was framed against the accused

without recording the precharge evidence. The proceeding,

which has been undertaken by the learned Magistrate, is not a

proceeding covered under Section 461 Cr.P.C. so as to vitiate

the trial.

In view of the aforesaid facts, this Court is of the

opinion that the orders impugned do not amount to abuse of

process of Court and thus, no interference is called for in the

orders impugned while exercising the inherent powers under

Section 482 Cr.P.C.

The misc. petition thus being bereft of any force, is

hereby dismissed. Stay petition is also dismissed. Record of

the trial Court be sent back forthwith.

Learned trial Court shall proceed with the trial

expeditiously.

(SANDEEP MEHTA), J.

/tarun/