PETITIONER:
BINDESI-IWARI PRASAD SINGH
Vs.
RESPONDENT:
KALI SINGH
DATE OF JUDGMENT05/08/1976
BENCH:
FAZALALI, SYED MURTAZA
BHAGWATI, P.N.
CITATION:
1977 AIR 2432 1977 SCR (1) 125
1977 SCC (1) 57
ACT
Code of Criminal Procedure 1908--Whether Magistrate has
jurisdiction to recall dismissal order made u/s 203--Appli-
cation for recalling dismissal order whether amounts to
fresh complaint.
HEADNOTE
The respondent’s complaint against the appellant regarding a
trivial matter was tossed for three years between various
magistrates for inquiry and report without conclusive re-
sults, and was ultimately dismissed under section 203
Cr.P.C. Thereafter on an application by the respondent for
recalling his dismissal order, the Magistrate again sent/the
case for inquiry ultimately issued process against the
accused.
The appellant contended before this Court that the Magis-
trate had no jurisdiction to recall his order of dismissal.
According to the respondent, his application for recalling
the dismissal-order, would amount to a fresh complaint.
Allowing the appeal, this Court,
HELD: (1 ) There is absolutely no provision in the Code of
Criminal Procedure of 1908 (which applies to this case)
empowering a Magistrate to review or recall an order passed
by him. Unlike section 151 of the Civil Procedure Code, the
subordinate criminal courts have no inherent powers. After
having passed the order, the Sub-Divisional Magistrate
became functus officio and had no power to review or recall
that order on any ground whatsoever. [126 G-H; 127 A]
(2) There was no fresh complaint and it is now well settled
that a second complaint can be only on fresh facts or even
on the previous facts only if a special case is made out.
[127 C-D]
Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, [1962] (2)
S.C.R. Supp. 297, followed.
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 74
of 1976.
Appeal by Special Leave from the Judgment and
’Order dated
28-7-75 of the Patna High Court in Criminal Revi-
sion No. 1046 of 1972.
A.K. Sen and A.K. Nag for the Appellant.
D. Gobrudhan, for the respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal by special leave exhibits the
careless and cavalior manner in which the Sub-Divisional
Magistrate appears to have dealt with the complaint filed
before him as far back as 21st February, 1966. The com-
plaint itself contains allegations of a very petty nature,
of which hardly any cognizance could have been taken and
which would be a trivial act under Sec. 95 of Indian
Penal Code for which no criminal proceedings could be taken.
There were proceedings under Section 107 between the parties
and both
126
parties applied for copies of .these proceedings on the 20th
December, 1965. It is alleged in the complaint that the
appellant got the copy which was meant for the complainant,
by signing his name. The complainant also got his copy a
few days after eventually. Such a small matter could have
been resolved by the Magistrate himself if he had persued
the complaint carefully and was certainly not a , matter
for which a detailed inquiry under section 202, Code of
Criminal Procedure, 1908 was called for. It appears, howev-
er, that the Magistrate tossed the complaint from one Magis-
trate to another for inquiry and report, without conclusive
results, starting from 21st February 1966 to 23rd November
1968, that is, for a period of more than two years. Ulti-
mately, on the 23rd November, 1968 the complaint was dis-
missed under section 203 of the Criminal Procedure Code on
the ground that the complainant was absent and did not
show any interest in the inquiry ordered by the Court.
On the 7th of December, 1968 the respondent appeared
before the Magistrate and filed an application for recalling
his order. The Magistrate passed no orders on this applica-
tion but he sent the case’ for inquiry to Mr. K.P. Sinha,
another Magistrate. Thereafter, the matter was sent to Mr.
S.N. Dube on 30th of October, 1969. Mr, Dube reported that
the inquiry had been completed and hence he returned the
papers. of inquiry to the Magistrate. On 9th of Decem-
ber, 1970, the Magistrate recalled the inquiry from Mr. K.P.
Sinha and transferred to Mr. A.R. Ansari and on the basis of
his report, the learned Magistrate passed the order taking
cognizance of the case and summoned the accused by his order
dated 3-5-1972, and issued processes against the appellants.
It would thus appear that a very petty matter was allowed to
have a long and chequered career because the Magistrate
refused to apply his mind either to the’ allegations made in
the complaint or to control the proceedings before him.
In support of the appeal Mr, Nag has submitted a short
point. He has contended that the Magistrate had no jurisdic-
tion to recall the order dated 23-11-1968, by which he had
dismissed the complaint under Section 203 of the Code of
Criminal Procedure. In fact, there was no express order
recalling the order dismissing the complaint, but by a
process of deeming fiction the Magistrate thought that the
order dismissing the complaint stood recalled.
We might mention that the order dated 23rd November,
1968 was a judicial order by which the Magistrate had given
full reasons for dismissing the complaint. Even if
the Magistrate had any jurisdiction to recall this order,
it could have been done by another judicial order after
giving reasons that he was satisfied that a case was made
out for recalling the order. We, however, need not dilate
on this point because there is absolutely no provision in
the Code of Criminal Procedure of 1908 (which applies to
this case) empowering a Magistrate to. review or recall an
order passed by him. Code of Criminal Procedure does contain
a provision for inherent powers, namely, Section 561-A
which, however, confers these powers on the High Court and
the High Court alone. Unlike Section 151
127
of Civil Procedure Code, the subordinate criminal courts
have no inherent powers. In these circumstances, there-
fore, the learned Magistrate had absolutely no jurisdic-
tion to recall the order dismissing the complaint. The
remedy of the respondent was to move the Sessions Judge or
the High Court in revision. In fact after having passed the
order dated 23-11-1968, the Sub-Divisional Magistrate became
functus officio and had no power to review or recall that
order on any ground whatsoever. In these circumstances,
therefore, the order even if there be one, recalling order
dismissing the complaint, was entirely without jurisdiction.
This being the position, all subsequent proceedings follow-
ing upon recalling the said order,would fall to the ground
including order dated 3-5-1972 summoning the accused which
must also be treated to be a nullity and destitute of any
legal effect. The High Court has not at all considered this
important aspect of the matter which alone was sufficient to
put an end to these proceedings. It was suggested by Mr. D.
Goburdhan that the application given by him for recalling
the order of dismissal of the complaint would amount to a
fresh complaint. We are, however, unable to agree with this
contention because there was no fresh complaint and it is
now well settled that a second complaint can lie only on
fresh facts or even on the previous facts only if a special
case is made out. This has been held by this Court in
Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar(1). For these
reasons therefore, the appeal is allowed. The Order of the
High Court maintaining the order of the Magistrate dated
3-5-1972 is set aside and the order of the Magistrate dated
3-5-1972 summoning the appellant is hereby quashed.
M.R.
Appeal allowed.
(1) [1962] 2 Supp. S.C.R. 297.
128