magistrate can recall his own order if it was obtained by fraud

I have carefully gone through the papers with able assistance of the learned advocates of both the sides. Though it sounds pessimistic, in my considered view, there is no apparent illegality committed by the two Courts below. They have consistently demonstrated as to how the material facts were not disclosed by the petitioner while lodging the OMCA No. 522/2015 and as to how the order was procured from the Magistrate on 8/6/2015 directing an investigation under Sub Section 3 of Section 156 of the Code of Criminal Procedure. They have concurrently held that since it was a matter of fraud, the order was non est and the learned Magistrate has simply declared it and has quashed and set aside the order passed by him on 8/6/2015.

7. There cannot be dispute about the trite principle as laid down in the case of Subramanium and Iris Computers (supra) that a Magistrate does not have any power under the Code of Criminal Procedure to recall, review or reconsider his own order howsoever illegal it might be. However, these principles do not cover the case of the present nature where it is not a matter of legality or otherwise of the order passed by the Magistrate but the manner in which the order was procured by misleading the Court by suppressing material facts and circumstances. Therefore, here is not a case where a jurisdiction not vested in the Magistrate was invoked by him. It is a case of bare and simple fraud practised upon the Court and it is trite that fraud vitiates everything. The two Courts below have rightly referred to and relied upon the decisions of the Supreme Court including the one in A.V Papayya Sastry v. Government of A.P; (2007) 4 SCC 221 : AIR 2007 S.C 1546 and K.D Sharmav. Steel Authority of India; (2008) 12 SCC 481. It is not a matter that the Magistrate having exercised a jurisdiction which is not vested in him but has exercised the powers which inherits in him in cancelling/recalling his order which according to him was procured by practising fraud.

In the High Court of Bombay

(Before Mangesh S. Patil, J.)

Dr. Deepak S/o Vasantrao Kesari, 

v.

 Dr. Shriram S/o Mukundrao Kalyankar 

Criminal Writ Petition No. 269 of 2017

Decided on August 20, 2018,

Citation:2018 SCC OnLine Bom 2199