Rasu Ranganathan and Another vs Sankaragiri Swamigal

Padmini Jesudurai, J.—The short point involved in this case is whether a Magistrate who has acquitted the accused under S.256 Cr.P.C. for

the absence of the complainant, can restore to file the same complaint even for a valid reason.

Facts briefly are as follows:- The respondent filed a complaint against the petitioners for an offence under S.500 I.P.C. The same was taken on

file by the Judicial First Class Magistrate, Karaikal, as S.T.R.893/83. On 24-9-1983 the Chief Judicial Magistrate, Pudukottai without notice to

the respondent, withdrew the above case to his file. Challenging the withdrawal, the respondent filed Crl.R.C.8/83 in this court and the same was

allowed on 23-9-86. The case went back to the Judicial First Class Magistrate, and re-numbered as S.T.R.3/87. On 22-3-1987, the learned

Magistrate acquitted the petitioners under S.256 Cr.P.C. for the absence 01 the respondent/complainant. The latter filed Crl.M.P.346/87 to take

up the case for further proceedings and to fix a date for examination of the witnesses. The learned Magistrate under the impugned order, set aside

the acquittal of the petitioners, under S.256; Cr.P.C, on the ground that after the revision had been disposed of by this court the date of hearing

had not been intimated to the respondent and it was only the petitioners who had been bound over to appear before the trial court and as such the

acquittal under S.256, Cr.P.C. was illegal. Challenging the above order and contending that the learned Magistrate has no power to set aside his

earlier order of acquittal - under S.256 Cr.P.C. the petitioner have filed this revision.

Thiru Desappan, learned counsel for the petitioners would contend that the trial court not being invested with any inherent powers and there

being no provisions in the Criminal Procedure Code empowering the learned Magistrate to set aside an acquittal, the impugned order is illegal and

is liable to be set aside. According to learned counsel, the order passed by the learned Magistrate on 22-3-87 acquitting the petitioners under

S.256, Cr.P.C. could be set aside only by a higher forum and not by the learned Magistrate himself.

Per contra, Thiru G. Kathirvelu, learned counsel for the respondent, relying upon a decision of a Full Bench of this Court in Chinna Kaliappa

Goundar and another v. Emperor ILR 29 Mad 126 holding that dismissal of a complaint under S.203 Cr.P.C. is not a judgment and has no finality

to it, thereby empowering the Magistrate to re-hear it, contended that the same principle should be extended to an acquittal under S.256 Cr.P.C.

The question that arises for consideration is whether a Magistrate has power to set aside his own order of acquittal under S.256 Cr.P.C, though

for a valid reason.

It is needless to go into the first principle, in the view of the position being covered by a direct decision of the Supreme Court in Maj. Genl. A.S.

Gauraya and Another Vs. S.N. Thakur and Another, . A complaint filed under the Mines Act, 1952 had been dismissed for the absence of the

complainant and restoration of the complaint was ordered By the learned Magistrate on the application of the complainant. The same was finally

challenged in the Supreme Court. After referring to the views expressed by some of the High Courts, the Supreme Court pointed out that, what the

court has to see, is not whether the Criminal Procedure Code contains an provisions prohibiting a Magistrate from entertaining an application to

restore a dismissed complaint but the task should be to find out, whether the said Code contains any provisions enabling a Magistrate to exercise

an inherent jurisdiction, which he otherwise does not have. After referring to S.249, Cr.P.C. which enables the Magistrate to discharge the

accused in a warrant case when the complainant is absent and S.256(1), Cr.P.C. which enables the Magistrate to acquit the accused in a summons

case for the absence of the complainant, the court referring to the jurisdiction of the Magistrate to restore the dismissed complaint observed:

So far as 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 code, a Magistrate cannot exercise any inherent jurisdiction.

The order of restoration was set aside as having been passed without jurisdiction.

In view of the above pronouncement of the Supreme Court, the contention of the learned counsel for the respondent that the law laid down in

Chinna Kaliappa Gounder and another v. Emperor ILR 29 Mad. 126 should be extended to an acquittal under S.256, Cr.P.C. has to be rejected.

The order of the learned Magistrate on 22-3-1987 acquitting the petitioners under S.256 Cr.P.C. for the absence of the complainant was an order

which he could legally pass under the Code. So far as the learned Magistrate was concerned, it was a final order and the court had become

functus officio. There was no provision in the Procedure Code which gave him the power to set aside that order and he had no inherent power to

do so. The order could be set aside only by a higher forum. The learned Magistrate either on the application of a party or suo motu, as he says he

has done in this case, cannot set aside his earlier order passed under S.256 Cr.P.C.

In the result, this Revision is allowed and the impugned order is seaside.