Parimal Chakraborty vs Ranjit Debnath and Others

P.G. Agarwal, J.—The respondent Sri Ranjit Debnath instituted a complaint alleging commission of offence u/s 420/406, etc. IPC and after holding enquiry u/s 202 Cr.P.C., the learned Magistrate issued process against the accused person under Sections 420/468 IPC vide order dated 24.10.96 passed in CR 1657/96. While the case was pending for appearance of the accused persons, the complainant remained absent on two consecutive dates and thereafter by order dated 9.9.97 the complaint was dismissed. Thereafter the complainant appeared and filed an application for restoration of the complaint case and vide impugned order dated 22.1.98 the learned Magistrate revived/restored the complaint back to life and hence the present revision.

At the outset, it is submitted that the complaint case we dismissed under the provisions of Section 249 Cr.P.C., but in the facts and circumstances of the present case the provision of Section 249 Cr.P.C. were not applicable.

"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."

It is submitted that the offence u/s 420/468 IPC were cognizable and non-compoundable and the case was also not fixed for hearing on 9.9.97 and hence the complaint could not have been dismissed u/s 249 Cr.P.C.

We will be reverting to the above submission at a later stage. But the question that comes up for consideration in the present revision is whether the trial court after dismissal of the complaint by it has the power to restore the same. The matter was considered by the Apex Court in the case of Bindeshwari Prasad Singh v. Kali Singh AIR 1977 SC 2432, wherein it was held that once the complaint is dismissed for default of the complaint, the same cannot be revived or restored as on the dismissal the Magistrate becomes functus officio. The above ratio of law wan reiterated by the Apex Court in the case of Maj. Genl. A.S. Gauraya and Another Vs. S.N. Thakur and Another, and the Apex Court further observed ''so far the accused is concerned dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provisions in the Cr.P.C., a Magistrate cannot exercise any inherent jurisdiction. As we know that there is no inherent power provided to the magistrate, under the Criminal Procedure Code and hence the trial Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. We therefore, have no hesitation to hold that the impugned order of recalling/restoration was without jurisdiction.

Now reverting back to the submission that the impugned order of dismissal was bad in law or not in conformity to the provisions of the Cr.P.C., the remedy available to the respondent is to move the revisional court for setting aside the same. It is further submitted on behalf of the respondent that on the earlier complaint has been dismissed for default and not on merit a second complaint lies and as such the impugned order may not be disturbed and the application may be treated as second complaint.

In Maj. Genl. (supra) the Apex Court, had observed that a second complaint can lie only on fresh facts or even on previous facts only if a specific case as made out and further the application for recalling the order of dismissal on default cannot tantamount to a fresh complaint.

In view of the above, we hold that the impugned order restoring the complaint petition, which was dismissed on 9.9.97 was without jurisdiction and as such bad in law. We allow the revision petition and set aside the impugned order dated 22.1.98. Send down the records.