Major Jagir Singh vs Chhabila

A.L. Bahri, J.—Vide this order, Cr. R. 115 of 1987 and Crl. M. No. 694M of 1987 are being disposed of together as the facts are common. One of the orders under challenge is the same. Facts are given from criminal miscellaneous petition filed under Section 482 of the Code of Criminal Procedure.

Chhabila filed a criminal complaint under sections 420, 423, 467, 468, 471 and 506, Indian Penal Code, against Major Jagir Singh, the present petitioner. Copy of the complaint is Annexure P.l. Sarwan Singh and Rajinder sons of Chhabila owned 20 Kanals of land. On October 7, 1981, this land was got in exchange by the petitioner Major Jagir Singh. The petitioner was not owner of the land delivered in exchange since he had suffered a consent decree with respect to land measuring 111 Kanals 4 Marlas in favour of his daughter. In this way, it was alleged that Major Jagir Singh defrauded Chhabila.

The Chief Judicial Magistrate, Hissar on the complaint passed an order, Annexure P. 2, on February 8, 1984 after preliminary evidence was recorded that Major Jagir Singh accused be summoned for March 19, 1984. This order was challenged in a revision petition before the Additional Sessions Judge. The order was set aside. The case was remanded to the trial Magistrate for deciding afresh by passing a speaking order copy of the order of the Additional Sessions Judge dated October 3, 1985 is Annexure P. 3. In the meantime on July 3, 1986, the complainant did not put in appearance before the Magistrate and the complaint was dismissed. Chhabila complainant filed an application for restoration of the complaint dismissed in default which was allowed by Additional Chief Judicial Magistrate vide order dated September 6, 1986, copy Annexure P. 4. On the same day, Additional Chief Judicial Magistrate passed a separate order on the complaint noticing that the complaint had been restored and that the accused be summoned for October 14, 1986, copy of this order is AnAnnexure P. 5. Against this order, Criminal Revision No. 115 of 1987 has been filed in this Court on the solitary ground that the trial Magistrate did not apply his mind to the evidence produced in order to come to a conclusion that there were sufficient grounds for proceedings against the accused before summoning him. It was on this very ground that the Additional Sessions Judge had accepted the revision petition and remanded the case to the trial Magistrate. Criminal Miscellaneous Application No. 684M of 1987 has been filed for quashing the proceedings on the ground inter alia that the trial Magistrate had no jurisdiction to recall the order dismissing the criminal complaint in the absence of the complainant vide order dated September 6, 1985, copy Annexure P. 4, and subsequent proceedings taken on the criminal Complaint are also liable to be quashed on that ground.

As far as order, Annexure P. 5, passed on the criminal complaint summoning the accused is concerned, there is no dispute that it is to beset aside as the trial Magistrate ignored the directions of the Additional Sessions Judge while passing this order. The trial Magistrate was required to go through the evidence produced by the complainant and then to come to a conclusion that there were sufficient grounds for proceedings with a complaint and to order summoning of the accused. The Additional Sessions Judge relied upon a decision of this Court in Smt. Inder Kahari and another v. Shri Mahesh Kumar Mehra, 1977 Chandigarh Law Reporter 17. It was held in this case that the order summoning the accused has to be a speaking order showing the application of the mind by the Judicial Magistrate and the prima facie opinion formed by him on the evidence produced by the complainant.

Learned counsel for the petitioner has argued that dismissal of the complaint on account of the absence of the complainant could not be recalled by the Judicial Magistrate. In support of this contention, reliance has been placed on the decision of the Supreme court in Bindeshwari Prasad. Singh v. Kali Singh, AIR 1977 Supreme Court 2432.That was a case relating to a petty nature and trivial offence, notice of which could not be taken in view of section 95 of the Indian Penal Code, as observed by the Supreme Court. The only allegation was that the appellant had got a copy which was meant for the complainant by signing his name. The complainant had also got his own copy a few days later. The said complaint was dismissed on account of the absence of the complainant. In para 4 of the judgment, the Supreme Court observed that there was no provision in the Code of Criminal Procedure, 1898 (which applied to the case) empowering the Magistrate to review or recall an order passed by him. The Code of Criminal Procedure containing provision for inherent powers under section 561A conferred powers on the High Court alone. Thus, it was held that the Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. The learned counsel for the respondent 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 nonappearance of the complainant. Reliance has been placed on section 249 of the Code of Criminal Procedure, 1973 which reads as under :

"Section 249. Absence of complainant. When the proceeding, 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, Criminal Procedure Code, 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 PLR 196, Bhagwan Singh v. Gurnam Kaur, 1966 PLR 127,and Gurbhajan Kaur v. Yaspal Singh, 1974 PLJ (Cr.) 326. In the aforesaid case, it was held that criminal complaint dismissed for nonappearance of 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. Learned counsel for the respondent referred to the decision of the Delhi High Court in Mata Din and others v. Ram Babu and another, (1986(1) Recent Criminal Reports 584) : 1986(1) Chandigarh Law Reporter 208, wherein it was held that the Magistrate was competent to restore the complaint dismissed in default. Discharge of the accused was without jurisdiction. This judgment is contrary to the ratio of the Supreme Court decision, as referred to above. It cannot be relied upon.

For the reasons recorded above, this petition is accepted and the impugned order dated September 6, 1986 (Annexure P. 4) recalling of order of dismissing complaint for nonappearance of the complainant and further proceedings on the complaint summoning the accused are quashed.