Baljinder Singh vs Jagsir Singh

A.P. Chowdhri, J.

The facts of the case giving rise to this revision petition are that Jagsir Singh respondent No. 1 instituted a complaint against the petitioner and respondents No. 2, and 3 under Sections 324, 452, 504 506/34 Indian Penal Code. Judicial Magistrate Ist Class, Muktsar, summoned the accused under Sections 323, 452, 506 and 324/34 Indian Penal Code. The case was fixed for 1.12.1989. The complainant failed to appear. All the three accused were present. The learned Magistrate dismissed the complaint "for want of prosecution" by order Annexure P2 dated 22nd January, 1990. The learned Magistrate relying on Kishori Lal and others v. Mst. Santosh, 1987 Crl. L J. 140. held that the complaint related to offence under Sections 452 and 324 Indian Penal Code which were cognizable or noncompoundable and could not, therefore, have been dismissed in default. He, therefore, recalled the order dismissing the complaint and restored the same to its original number. The said order of the learned Magistrate is assailed in the present revision petition.

The contention of Shri R. K. Joshi, learned counsel for the petitioner is that the order dismissing the complaint was a final order. It could not be either reviewed or recalled or altered for the simple reason that the Magistrate had no inherent powers like the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure nor had powers of reviewing the order passed by him earlier. The order dismissing the complaint was a final order within the meaning of Section 362 of the Code and the Magistrate was not competent to alter the said order or recall the same. In fact, with, the dismissal of the complaint, the learned Magistrate became functus officio. He has relied on a number of authorities in support of his contention.

Shri H.S. Gill. learned counsel for respondent No. 1, on the other hand, contended that the offences in question were cognizable and, therefore, under Section 249 of the Code, the Magistrate had no discretion to dismiss the complaint for want of prosecution and, therefore, the order of dismissal was without jurisdiction and non est. In other words, such a order did not exist in the eyes of law and the learned Magistrate could, in the facts and circumstances of the case, ignore the order of dismissal and proceed afresh on the basis of the application made by the complainant. He has also placed reliance on a number of authorities.

I have given my anxious consideration to the respective submissions of the learned councel.

It will be convenient to first deal with the contention of Shri Gill. His main reliance is on Mata Din and others v. Ram Babu and another, 1986(1) Recent C.R. 584. A learned Single Judge of Delhi High Court relying on B.D. Sethi and others v. V. P. Dewan, (1917) 7 DLT 162 D.B. decision of the same Court, held that the order of dismissal of complaint could be recalled and the complaint could be restored. It may at once be pointed out that B.D. Sethi (supra). was expressly overruled by the Supreme Court in Maj. Genl. A.S. Gauraya and another v. S.N. Thakur and another, 1998(1) Recent C.R. 3 : AIR 1986 Supreme Court 1440. A later Single Bench of Delhi High Court in V. Venugopal v. The State and another, 1987(2) Recent C.R. 173 took a contrary view and held that dismissal of complaint was a final order and the Magistrate cannot exercise any inherent jurisdiction to restore the same.

Further contention of Shri Gill is that the offences in the present case being cognizable, the Magistrate acted without jurisdiction in dismissing the complaint which were to be tried as a warrant case. The order of dismissal was thus void ab initio and be could, therefore, recall the order. In support of this proposition, he relied on Prem Singh v. State and another 1982 Cri. L.J. 297.

Lastly, Shri Gill contended that this Court as distinguished from the Judicial Magistrate had inherent powers under Section 482 and if at all there was any lack of jurisdiction in passing the said order, the same could be made good by appropriate orders by this Court in the interest of justice. For this proposition Mr Gill placed his reliance on two decisions of this Court in Mohinder Singh and others v. The State of Punjab and others, 1989(2) All India Criminal L.R. 133 and Gurdial Singh Mann v. Dharmpal Singh Mann 1990(1) Recent C.R. 272.

In so far as this Court is concerned, it has been the consistent view that once a complaint is dismissed the Magistrate has no jurisdiction to restore the same. In two recent decisions, in Major Jagir Singh v. Chhabila 1988(2) Recent C.R. 362 : 1988 C.C. Cases 478 (RC), A.L. Bahri, J. and more recently in Kashmir Singh v. State of Punjab and another, 1991(1) Recent C. R. 324, S. D. Bajaj, J. referred to the earlier, decisions of this Court and held that the Magistrate had no such powers. It may be mentioned here that the headnote in Kiran Dev v. Chet Kaur, 1988(1) Recent C.R. 19 decided by brother Harbans Singh Rai, J. seems to give the impression as if a different view was taken but that is not so. What happened in that case was that the Magistrate dismissed complaint and the order of dismissal was challenged in this Court by way of revision. There can be no denying the fact that if revision is filed against an order of dismissal, the revisional Court can pass appropriate orders. The precise question which requires decision in the case in hand is whether the Magistrate was competent to recall the order of dismissal and restore the complaint.

The contention of Shri Gill that being an order without jurisdiction, the dismissal was non est, is fallacious. It loses sight of the fact that the dismissal was a final order and it could not be altered in view of provision of Section 362 of the Code of Criminal Procedure. The matter must be deemed to have been settled as a result of two decisions of the Supreme Court in Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 Supreme Court 2432 and in a recent decision in Maj. Genl. A.S. Gauraya and another v. S.N. Thakur and another, AIR 1986 Supreme Court 1440. The aforesaid decisions clearly lay down that on the dismissal of the complaint, the Magistrate becomes functus. officio. The Magistrate does not exercise any inherent jurisdiction. Dismissal of the complaint amounts to a final order and the same cannot be altered or reviewed by the Court in view of the provisions of Section 362 of the Code of Criminal Procedure.

The decision in Kishori lal and others v. Mst. Santosh (supra), is clearly distinguishable. The question involved in that case was whether a second complaint, as distinguished from restoration of the same complaint, was competent once the Court declined to take cognizance against certain accused on the earlier complaint. It is manifest that the point involved in the present complaint is entirely different, namely whether a complaint dismissed for want of prosecution can be restored by the Magistrate.

To conclude the discussion, the law on the subject may be sumMarised as under :

(i) When a Magistrate is faced with the question as to what action; should be taken on account of absence of the complainant, he should first see whether the complaint relates to summons or warrant case. The procedure to be followed in summons case is laid down in Section 256. The Section confers a discretion on the Magistrate and unless he decides to adjourn the case either by dispensing with the personal attendance of the complainant or for some other reasons which he thinks proper, he shall dismiss the complaint. The aforesaid absence includes absence on account of the death of the complainant vide Section 256(2).

(ii) Where the complaint relates to a warrant case, the relevant provision in Section 249. The Magistrate has no jurisdiction to dismiss the complaint where the offence is either not compoundable or is cognizable In relation to warrant case, instituted upon complaint which are either compoundable or recognizable, the Magistrate has a discretion to dismiss the complaint only if charge had not been framed.

(iii) If in a warrant case in exercise of the powers under Section 249 and in case thereunder, the complaint is dismissed, the Magistrate has no power to recall the order of dismissal and to restore the complaint. It is only by a Court exercising powers of revision that the order of dismissal may be set aside.

The second complaint on the same facts is permissible in law if it could be brought within the limitation imposed by the Supreme Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 Supreme Court 876 as reiterated in Major Genl. A.S. Gauraya v. S.N. Thakur and anr., AIR 1986 Supreme Court 1440.

For these reasons, the order in question deserves to be set aside. Accordingly the revision petition is allowed and the order dated 22nd January, 1990 is hereby set aside.