CRIMINAL MISCELLANEOUS None on 15 July 2004

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl.Misc.No.M-38537 of 2007Date of Decision:- 21[st].01.2010

Daya Kishan and another

....Petitioner(s)

vs.

Banarsi Dass

....Respondent(s)

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CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH

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Present:-Mr.Rahul Rampal, Advocate, for the petitioners.

Mr.Gurcharan Dass, Advocate,for the respondent.

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AUGUSTINE GEORGE MASIH, J.

Prayer in the present petition is for quashing of the order dated13.12.2004 (Annexure P-2) passed by the Additional Chief JudicialMagistrate, Ludhiana vide which the complaint which was dismissed indefault for want of prosecution vide order dated 15.7.2004 (Annexure P-1)stands restored and for quashing of all subsequent proceedings arisingtherefrom i.e. summoning order dated 16.1.2007 (Annexure P-3) and furtherquashing of the complaint Annexure P-4.

Counsel for the petitioners contends that a criminal complaintpreferred by a private person once dismissed for non-prosecution onaccount of his non-appearance amounts to passing of a final order whichcannot be recalled or reviewed by the Magistrate. The said order can onlybe challenged by the complainant in accordance with law before a superior Court and it is only the superior Court which can, for the reasons which arejustified and specified by the requirement of law, set aside such an order.He submits that the subordinate criminal Court does not have any inherentjurisdiction as is available under Section 482 Cr.P.C. in the High Court andthere being no provision under the Code of Criminal Procedure whichwould give powers to a Magistrate to recall or review an order passed byhim, order dated 13.12.2004 (Annexure P-2) passed by the Additional ChiefJudicial Magistrate, Ludhiana, cannot be sustained. In support of thisproposition, counsel for the petitioners has relied upon the judgments of theHon'ble Supreme Court in the case ofBindeshwari Prasad Singh vs. KaliSingh,AIR 1977 SC 2432,Major General A.S.Gauraya vs. S.N.ThakurAIR 1986 (SC) 1440.

On the other hand, counsel for the respondent contends that inthe present case, complaint was preferred by the respondent against thepetitioners. Before the issuance of summons, respondent No.1-complainantcould not appear before the Court on 15.7.2004 being unwell. The case wasfixed for pre-summoning evidence of the complainant and, therefore, noprejudice was caused to the petitioners by restoration of the case. Hecontends that at the stage when the case was dismissed for non-prosecutionand was subsequently restored, it was between the Magistrate and thecomplainant alone as the petitioners had yet not been summoned in the case.The Magistrate having been satisfied with the reasons given by thecomplainant for non-appearance on the date fixed, restored the complaintand proceeded to further take pre-summoning evidence of the complainant.He further contends that the Magistrate has not considered the complaint onmerits nor has he dismissed the complaint on consideration of the matter and had merely proceeded to dismiss the complaint for non-prosecution dueto non-appearance of the complainant. The question of discharge of theaccused and the applicability of Section 242 Cr.P.C., does not come intopicture as the accused-petitioners were not discharged by the Court. It isonly in case of discharge of the accused that the Magistrate cannot recall theorder of dismissal of the complaint. Even otherwise, the order dated15.7.2004 was an interim order and not a final judgment and, therefore, thesame could be recalled by the Magistrate. In support of his contention,counsel for the respondent has relied upon the judgments of this Court inthe cases ofSuresh Kumar and others vs. Railway Protection Force andothers,2004 (3) RCR (Criminal) 917, Smt.Kamla Devi and others vs.Mehma Singh,1989 (1) PLR 487 and a Division Bench judgment of theDelhi High Court in the case ofShiv Kumar vs. Mohd.Saghir,1997 (1)RCR (Criminal) 709.

I have heard counsel for the parties and have gone through therecords of the case as also the judgments relied upon by the counsel for theparties. There can be no dispute with regard to the proposition that theinherent powers under Section 482 Cr.P.C. are only available with the HighCourt. The Courts below, therefore, do not have the powers under Section482 Cr.P.C. which, therefore, they cannot exercise at any stage. The Courtsbelow, therefore, are bound by the powers as have been made available tothem under the Code of Criminal Procedure. There is no provision underthe Code of Criminal Procedure which empowers the Magistrate to recall orreview his order, once passed by him, except in cases where they are allinterim in nature. Dismissal of a complaint cannot be termed as an orderwhich is not final whether it is due to default on the part of the complainant to appear before the Court or due to want of prosecution. Once a powervested in the Magistrate under the Code of Criminal Procedure has beenexercised, the same cannot be modified, changed or recalled by theMagistrate unless such power is conferred upon the Magistrate under theCode of Criminal Procedure. There being no provision under the CriminalProcedure Code empowering the Magistrate to review or recall his earlierorder dismissing the complaint in default and for want of prosecution, theorder passed by the Magistrate attains finality which can only be set aside ormodified by a superior Court in accordance with law. The other optionavailable to the complainant in case the complaint has been dismissed fornon-prosecution is to prefer another complaint on the same facts ifpermissible under the law.

The Hon'ble Supreme Court in Bindeshwari Prasad Singh's case(supra) in para 4 of the judgment has held as follows:

“4. We might mention that the order dated 23[rd]November, 1968 was a judicial order by which theMagistrate had given full reasons for dismissing thecomplaint. Even if the Magistrate had any jurisdiction torecall this order, it could have been done by anotherjudicial order after giving reasons that he was satisfiedthat a case was made out for recalling the order. We,however, need not dilate on this point because there isabsolutely no provision in the Code of CriminalProcedure of 1898 (which applies to this case)empowering a Magistrate to review or recall an orderpassed by him. Code of Criminal Procedure does contain a provision for inherent powers, namely, Section 561-Awhich, however, confers these powers on the High Courtand the High Court alone. Unlike Section 151 of CivilProcedure Code, the subordinate criminal courts have noinherent powers. In these circumstances, therefore, thelearned Magistrate had absolutely no jurisdiction torecall the order dismissing the complaint. The remedyof the respondent was to move the Sessions Judge or theHigh Court in revision. In fact after having passed theorder dated 23-11-1968, the Sub Divisional Magistratebecame functus officio and had no power to review orrecall that order on any ground whatsoever. In thesecircumstances, therefore, the order even if there be one,recalling order dismissing the complaint, was entirelywithout jurisdiction. This being the position, allsubsequent proceedings following upon recalling the saidorder, would fall to the ground including order dated 3-5-1972 summoning the accused which must also be treatedto be a nullity and destitute of any legal effect. The HighCourt has not at all considered this important aspect ofthe matter which alone was sufficient to put an end tothese proceedings. It was suggested by Mr.D.Goburdhanthat the application given by him for recalling the orderof dismissal of the complaint would amount to a freshcomplaint. We are, however, unable to agree with thiscontention because there was no fresh complaint and it is

Conclusion

now well settled that a second complaint can lie only onfresh facts or even on the previous facts only if a specialcase is made out. This has been held by this Court in1962 Supp (2) SCR 297 : (AIR 1962 SC 876). For thesereasons, therefore, the appeal is allowed. The Order ofthe High Court maintaining the order of the Magistratedated 3-5-1972 is set aside and the order of theMagistrate dated 3-5-1972 summoning the appellant ishereby quashed.”

Relying upon this proposition, the Hon'ble Supreme Court inthe case ofMajor General A.S.Gauraya's case(supra) wherein the factsof the case were similar to the case in hand has held that the Magistratecould not recall his order once the complaint has been dismissed for non-prosecution. It has been further held that no criminal Court has any inherentjurisdiction, being not provided for in the Criminal Procedure Code.

In the light of the above two judgments of the Hon'ble SupremeCourt wherein the Hon'ble Supreme Court has held that the order passed bythe Magistrate dismissing the complaint cannot be reviewed or recalled, theorder dated 13.12.2004 (Annexure P-2) passed by the learned AdditionalChief Judicial Magistrate, Ludhiana, cannot be sustained and deserves to beset aside. The judgments relied upon by the counsel for the respondent inthe light of the judgments of the Hon'ble Supreme Court referred to andrelied upon above, will be of no help to the respondent.

Accordingly, the present petition is allowed, the order dated13.12.2004 (Annexure P-2) passed by the learned Additional Chief JudicialMagistrate, Ludhiana is hereby quashed. As a consequence of the quashing of the order dated 13.12.2004 (Annexure P-2) all subsequent proceedingsand the orders in these proceedings passed by the Magistrate shall bedeemed to have been quashed.

January 21[st], 2010( AUGUSTINE GEORGE MASIH )poonam JUDGE

Whether referred to Reporters?Yes/No.

Crl.Misc.No.M-38537 of 2007

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Present:-Mr.Rahul Rampal, Advocate, for the petitioners.

Mr.Gurcharan Dass, Advocate,for the respondent.

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Arguments heard.

Judgment reserved.

November 13, 2009poonam

( AUGUSTINE GEORGE MASIH ) JUDGE