JUDGMENT Ravindra Singh, J.
1. Heard Sri Madan Mohan Srivastava learned counsel for the petitioner, learned A.G.A. and Sri R.K. Khanna learned counsel for the respondent No. 2.
2. This petition has been filed against the order-dated 6.3.2003 passed by the learned Additional Sessions Judge, (Fast Track Court) Court No. 28 Allahabad in Criminal Revision No. 1035 of 1996 whereby the revision filed by the respondent No. 2 was allowed and the order dated 19.9.1996 passed by the learned A.C.J.M., 1st, Allahabad was set aside and the matter was remitted to the court of learned A.C.J.M., 1st Allahabad to dispose of the matter on priority basis considering the observations given in the judgment in accordance with the provisions of law.
3. The facts in brief of this writ petition, are that an F.I.R. was lodged in case crime No. 124 of 1989 under Section 409 I.P.C., P.S. Khuldabad, district Allahabad on 13.3.1989 by the respondent No. 2 against two persons, namely, C.D. Singh and Rangi Lal Tripathi. The petitioner was not named in that F.I.R. as an accused. The matter was investigated. The I.O. submitted final report on 8.9.1989. The notice was sent to the respondent No. 2 by the court, giving an opportunity of hearing to aim on the final report. After receiving notice respondent No. 2 appeared in the court, but the respondent No. 2 did not file any objection against the final report, so the learned A.C.J.M., 1st Allahabad accepted final report on 19.8.1991. After acceptance of the final report the respondent No. 2 filed an objection dated 19.8.1991 in the court of the learned A.C.T.M., 1st Allahabad with a prayer that the abovementioned order dated 19.8.1991 may be set aside. That application was allowed by the learned Magistrate concerned on 27.8.1991 by recalling the order dated 19.8.1991 and the case was restored to its original number and by the same order final report was rejected and the cognizance was taken against the petitioner and co-accused CD. Singh and Rangi Lal Tripathi and they were summoned to face the trial for the offence punishable under Section 409 I.P.C. Against the order dated 27.8.1991 the petitioner filed Criminal Revision No. 1250 of 1991. The same was dismissed by this court on 20.12.1993 in which it was observed that the petitioner may file the objection under Section 227 Cr. P. C. before the trial court in respect of his grievance. Thereafter, the petitioner and other co-accused filed an application under Section 227 Cr. P. C. in the court of learned Magistrate. The same was rejected on 15.4.1996. This order was challenged by the petitioner by way of filling the Criminal Revision No. 658 of 1998. The same was allowed on 20.8.1996 by learned 7th Additional Sessions Judge, Allahabad and the order dated 15.4.1996 was set aside and the matter was again remitted to the court of learned Magistrate for passing a fresh order in pursuance of the order dated 20.12.1993 passed by this court and the direction given by the revisional court in judgment and after considering the evidence available on the record. Thereafter, the learned A.C.J.M., 1st Allahabad passed a fresh order dated 19.8.1996 and the application moved by the petitioner under Section 227 Cr. P. C. allowed and he was discharged for the offence punishable under Section 409 I.P.C. The order dated 19.8.1996 was again challenged by the respondent No. 2 by way of filling Criminal Revision No. 1035 of 1996 which was allowed on 06.3. 2003 by the learned Additional Sessions Judge, Fast Track Court No. 28, Allahabad and the order dated 19.8.1996 was set aside and the matter was again remitted to the court of the learned Magistrate to pass a fresh order in accordance with the provisions of law after considering the observations given by the revisional court in the judgment. The order dated 6.3.2003 was challenged by the petitioner by way of filling the present petition.
4. It is contended by the learned counsel for the petitioner that the petitioner was posted as Pravar Adhikshak, Rail Daak Sewa at Allahabad in the year 1988 and an advertisement was issued inviting tenders for sale of waste papers of the department, vide letter No. H5/32/88-89 of 20.5.1988 for which the respondent No. 2 has applied for tender and tender was accepted in his favour, but after obtaining the tender of waste papers of Railway Mail Service, Postal Department, the respondent No. 2 has not complied with the terms and conditions of the tender, thereafter, his name was blacklisted by the petitioner vide letter dated 29.9.1988. On account of this declaration the respondent No. 2 became annoyed with the employees of the Railway Department. Thereafter, the respondent no, 2 lodged an F.I.R. after thought on 13.3.1989 at the police station Khuldabad, Allahabad on the basis of the allegations made against the CD. Singh and Rangi Lal Tripathi, employee of the Department of Railway. The allegation was that the Officers and the employee of the Railway Mai! Service, 8 Division, Allahabad have misappropriated the amount of Rs. 13,393, which was deposited by the respondent No. 2. In that F.I.R. there was no allegation against the petitioner.
5. It is contended by the learned counsel for the petitioner that the matter was investigated by the I.O. who came to conclusion that no offence was committed by the petitioner and other co-accused persons so he submitted the final report. The learned Magistrate has sent the notice to respondent No. 2 giving an opportunity for hearing on the final report. After receiving that notice the petitioner appeared before the court and he deliberately did not file the protest petition immediately after 19.8.1991. The learned Magistrate perused the evidence collected by the I.O. and accepted the final report. After acceptance the final report the respondent No. 2 moved an application 19.8.1991 to recall the order dated 19.8.1991 and to restore the case to its original number and to take the cognizance against the petitioner and other co-accused persons. The same was allowed by the learned A.C.J.M., 1st, Allahabad on 27.8.1991. The order dater dated 27.8.1991 is illegal because after accepting the final report on 19.8.1991 he was not empowered to recall his order, because there is no provisions to recall or review the order in Cr. P. C., so consequently, orders passed by the courts below also is illegal. The petitioner filed criminal revision before the High Court, though it was dismissed by certain observations made by this court. In pursuance of those observations the petitioner moved and application under Section 227 Cr. P. C., but the same was illegally rejected by the learned Magistrate on 15.4.1996. That order was set aside by the learned 7th Additional Sessions Judge, Allahabad on 20.8.1996 and the matter was remitted to pass a fresh order in pursuance of the order dated 20.12.1993 passed by this court and the direction given in the judgment dated 20.8.1996. After considering the evidence available on record. After considering the observation made by this court and the evidence present on the record and the direction given by the learned Additional Sessions Judge, Allahabad vide order dated 20.8.1996 the learned A.C.J.M., 1st, Allahabad allowed the application of the petitioner under Section 227 Cr. P. C. and he was discharged for the offence punishable under Section 409 I.P.C. There is no illegality in the impugned order dated 19.9.1996. It was passed after considering all the facts and circumstances of the case and direction given by this court and the court of Sessions in revision. Even then this order was illegally set aside by the learned Additional Sessions Judge, Fast Track Court No. 28, Allahabad on 6.3.1993 and the matter was again remitted to the court of learned Magistrate to pass a fresh order in the light of direction given in the judgment dated 6.3.2003. It is further contended that on the basis of the evidence collected by the I.O. there is no evidence against the petitioner to show his involvement in the present case. The cognizance has been taken against him by the learned magistrate only on the ground that the petitioner has not properly cooperate with the investigation of the case, so only on the ground of the sole circumstance of non cooperation the petitioner with the investigation the learned Magistrate came to conclusion that it seems that the petitioner was also involved in the present case. This sole ground is not sufficient for the subjective satisfaction of the learned Magistrate for taking the cognizance against the petitioner for the offence punishable under Section 409 I.P.C. because there is no other evidence and circumstance against the petitioner to show his involvement in the present case and on the basis of the evidence collected by the I.O. no offence is made out against the petitioner.
6. It is opposed by the learned A.G.A. and Sri R.K. Khanna learned counsel for the respondent No. 2 by submitting that there is no illegality or irregularity in the impugned order and there is sufficient ground to proceed further against the petitioner. He was wrongly discharged by the learned Magistrate under Section 227 Cr. P. C. and there is no illegality in the impugned order dated 6.3.2003 passed by the learned Additional Sessions Judge, Fast Track Court No. 28, Allahabad.
7. From the perusal of the record it appears that in the present case the final report was submitted by the I.O. A proper notice was sent to the respondent No. 2 by the learned Magistrate before consideration of the final report. The respondent No. 2 appeared in the court, even then he did not file protest petition against the final report and ultimately the learned Magistrate accepted the final report on 19.8.1991. After passing that order on the same day' the respondent No. 2 filed an application along with the affidavit with a prayer to recall the order dated 19.8.1991 and to restore the case to its original number. The same was allowed by the learned Magistrate on 27.8.2001, by which the order dated 19.8.1991 was recalled, the case was restored to its original number and the final report was rejected and the learned Magistrate took the cognizance and summoned the petitioner and other co-accused persons to face the trial for the offence punishable under Section 409 I.P.C. The learned Magistrate committed the manifest error by passing such order dated 27.8.1991 by which he has recalled his own earlier order dated 19.8.1991 because there is no provision in the Cr. P. C. to recall or review his own orders and there is no evidence collected by the I.O. during the investigation against the petitioner to show his involvement in the present offence. The learned Magistrate committed the manifest error by taking the cognizance and summoning the petitioner for the offence punishable under Section 409 I.P.C., only on the sole ground that he had not co-operated with the investigation done by the I.O. In such circumstances it cannot be presumed that the petitioner was also involved in the commission of the offence, because for this presumption there was no other evidence, because evidence collected by the I.O. who submitted the final report that no offence under Section 409 I.P.C. is made out against the petitioner; Therefore, the learned A.C.J.M., 1st, Allahabad did not commit any error by discharging the petitioner vide order dated 19.9 1996. It is perfect order, which did not require any reconsideration, Therefore, the learned Additional Sessions Judge, (Fast Track Court) Court No. 28, Allahabad committed manifest error by setting aside the order dated 19.9.1996 and remitting the matter to the court of the learned Additional Chief Judicial Magistrate, 1st, Allahabad for passing a fresh order in accordance with the provisions of law. It is an illegal order, which deserves to be set aside.
8. In view of the facts and circumstances of the case and the submissions made by the learned counsel for the petitioner, learned A.G.A. and the learned counsel for the respondent No. 2 and the reasons given above the impugned order dated 19.9.1996 is set aside.
9. Accordingly the petition is allowed.