Kashmir Singh vs State of Punjab

S.D. Bajaj, J.

Jagrup Singh, respondent No. 2 got recorded against the petitioners a First Information Report under Secs 452/380/324/325/148/149 of the Indian Penal Code in respect of the occurrence dated 13th Feb., 1988 on 14th February, 1989 the following day. After investigation the police reported the matter as untraced on 5th July, 1989 and initiated action against respondent No. 2 under Sections 182 and 211 of the Indian Penal Code. On 10th October, 1988 respondent No. 2 filed a criminal complaint of the same occurrence dated 13th February, 1988 aforesaid in the court of learned Judicial Magistrate 1st Class, Muktsar, which was dismissed in default for nonappearance of the complainant on 1st July, 1989. On the application of the complainant (respondent No. 2.) dated 4th July, 1989, the complaint dismissed in default on 1st July, 1989 was restored by the learned Judicial Magistrate 1st Class, Muktsar, on 10th July, 1989. After recording .the premliminary evidence petitioners have been summoned as accused therein vide impugned order dated 26th April, 1990 of the learned trial court for 21st May, 1990. Criminal Misc. No. 7039M of 1990 has been filed by all the four respondents in the complaint for quashing the summoning order dated 26th April, 1990.

In reply it was asserted that the police having not taken any action against, the petitioners named as accused in the First Information Report, respondent No. 2 had no other alternative except to approach the criminal court of competent jurisdiction for seeking justice and that the impugned order dated 26.4.1990 was based on cogent convincing and reliable evidence adduced by respondent No 2 before the learned trial court. Hence the quashing petition merits rejection. Restoration of original complaint dated 10th October, 1988 vide order dated 10th July, 1989 made on the application moved by respondent No. 2 before the learned trial court on 4th July, 1989 was, however, not disputed in the reply obtaining in para 3.

I have heard Shri J.S. Virk, Advocate, for the petitioners, Shri P.S. Sarna, Advocate, for the State, assisted by Shri R.C. Setia, Advocate, for complainantrespondent No. 2 and have carefully gone through the annexures.

The short point for consideration before this Court is, could the complaint dated 10th October, 1988 which was dismissed for non appearance of the complainant on 1st July, 1989 be restored on 1st July, 1989 on the application filed by complainant (respondent No. 2 before this Court) for this purpose on 4th July, 1989. Delhi High Court in V. Venugopal v. State and another, 1987(2) Recent Criminal Report 173 : 1987 Chandigarh Criminal Cases 345 and this Court in Major Jagir Singh v. Chhabila, 1988(2) Recent Criminal Reports 362 : 1988 Chandigarh Criminal Cases 478 have repeatedly held that the Magistrate had no jurisdiction to recall or review his order of dismissing the complaint for nonappearance of the complainant.

Learned counsel for respondent No. 2 referred me to the observations made by my learned brother H.S. Rai, J. in Kiran Dev v. Chet Kaur 1988(1) Recent Criminal Reports 19 and urged that the offences mentioned in the complaint being cognizable and not lawfully compoundable, the complaint, could not be dismissed for nonappearance of the complainant on 151998. May as it be, this Court is not hearing the revision against the order of dismissal dated 1st July, 1989. It is the quashing petition against the order of restoration dated 10th July, 1089 legality where of is being examined and the question for determination is whether the summoning order dated 26th April, 1990 could be made in a restored complaint. The judgment cited being contrary to the ratio of the Supreme Court judgment in Bindeshwari Prasad Singh v. Kali Singh, A.I.R. 1977 Supreme Court 2432 cannot be relied upon. Relevant observations made by the Supreme Court read.

"We might mention that the order dated 23rd November, 1968 was a judicial order by which the Magistrate had given fall 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 1898 (which applied 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, Sec. 516A which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 of the Civil Procedure Code, the subordinate criminal courts have no inherent powers. In these circumstances, therefore, the learned Magistrate had absolutely no jurisdiction 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 23111968, the SubDivisional 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 following 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. 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 1962 Supp. (2) SCR 297; AIR 1962 SC 876. For these reasons, therefore, the appeal is allowed. The order of the High Court maintaining the order of the Magistrate dated 3.5.1972 set aside and the order of the Magistrate date 351972 summoning the appellant is hereby quashed."

The learned counsel for the respondents has sought to distinguish the above case on the ground that the present case related to an offence which is noncognizable (Section 420, Indian Penal Code) and the complaint could not be dismissed for non appearance of the complainant. Reliance has been placed on section 249 of the Code of Criminal Procedure, 1860, which reads as under :

"Section 249. Absence of complainant. When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed discharge the accused."

There is no force in this contention. A perusal of Section 249, Cr.P.C., as reproduced above, makes it abundantly clear that this section applies to complaints of offences which can be compounded as well as to complaints of noncognizable offences. The ratio of the decision of the Supreme Court (Supra) would be applicable to the case in hand. Reference may also be made to several decisions of this Court. Babu Ram v. Ramji Lal, 1964 P.L.R. 196. Bhagwan Singh v. Gurnam Kaur, 1966 P.L.R. 127 and Gurbhajan Kaur v. Yashpal Singh, 1974 P.L.J. (Cr.) 326. In the aforesaid case, it was held that criminal complaint dismissed for nonappearance or the complainant could not be restored and the accused could not be summoned on the same complaint. The Magistrate had no jurisdiction to recall or review of order of dismissing complaint for nonappearance of the complainant.

In result the quashing petition succeeds and is allowed. Summoning order dated 26th April, 1990 Annexure PI is quashed.