S. Sankaran vs Inspector, Triplicane Range, Traffic Investigation Dept.

This petition is filed u/s 482 Code of Criminal Procedure to quash the proceedings in C.C. No. 690 of 1991 on the file of VI Metropolitan

Magistrate, Madras. The petitioner is accused in that case for the offence u/s 304-A, 337 and 338 Indian Penal Code and Sections 184 and 185

of Motor Vehicles Act. The petitioner has stated that his car TSE 1326 involved in an accident on 6-12-90 for which the police charge-sheeted

him before the VI Metropolitan Magistrate, Madras, that though the case was pending on the file of the learned Magistrate for nearly two years,

the prosecution was never ready or produced any witness and therefore the learned Magistrate stopped the proceedings by his order dated 26-

10-92 u/s 258 Code of Criminal Procedure, but to his surprise, he received a summons from the Court directing him to appear on 2-12-92 as the

learned Magistrate had re-opened the case by his order dated 29-10-1992. It is further sated that the order of the learned Magistrate re-opening

the case is unconstitutional, excess of jurisdiction and it is a nullity as it is a non-speaking order even without giving notice and opportunity to the

accused petitioner and therefore the re-opening of the case u/s 300(5) Code of Criminal Procedure is illegal and without merit and therefore the

proceedings has to be quashed.

From the allegations in the petition, it is clear that as the witnesses were not produced by the prosecution, the learned Magistrate had passed the

order u/s 258 Code of Criminal Procedure stopping the proceedings. But the investigating officer filed a petition on 29-10-92 before the learned

Magistrate that the witnesses had been to North India for a film shooting, that on account of their absence in Madras, they could not be produced

before the Court and as the witnesses had returned, he was prepared to produce the witnesses for trial and therefore the case might be re-opened

for trial. On the basis of this petition filed by the investigating officer, the learned Magistrate passed order on the same day, i.e. on 29-10-92, as

follows :

In view of the circumstances explained by the Sub-Inspector, permission is granted to re-open the case. Issue summons to the accused. Call on

16-11-1992.

It is this order that is being challenged now by the petitioner accused.

According to the learned counsel for the petitioner Mr. S. Venkataraman, the learned Magistrate, who passed the order of discharge u/s 258

Code of Criminal Procedure has no powers to re-open the case thereafter and such powers are not conferred under the Code of Criminal

Procedure and therefore the order re-opening the case is to be quashed as illegal.

The learned counsel relies upon certain decisions to support his argument. The first decision relied upon by him is Bindeshwari Prasad Singh Vs.

Kali Singh, . This is a case in which the complainant who initiated a private complaint, was absent and therefore his complaint was dismissed u/s

203 Code of Criminal Procedure (Old Code) and on petition by the complainant later on, the complaint was restored by the Magistrate. Referring

to the conduct of the learned Magistrate, the Supreme Court observed that there is no provision in Code of Criminal Procedure empowering the

Magistrate to review or recall a judicial order passed by him and the inherent powers conferred under the Code of Criminal Procedure can be

invoked only by the High Court and the subordinate Criminal Courts have the powers to recall a judicial order passed by them. In another decision

of the Apex Court in, Maj. Genl. A.S. Gauraya and Another Vs. S.N. Thakur and Another, , which is also a case of same facts in which the

private complaint was dismissed for the non-appearance of the complainant, the Supreme Court, referring to the earlier decision cited above, has

held that the Magistrate has no inherent power to review his order of dismissal and restore the case.

The learned counsel for the petitioner contended that though both these decisions relate to the powers of the Magistrate to restore the

complaint, which was dismissed for default, the principles enunciated in these decisions are applicable for the present case also on hand and in the

above decisions, the Supreme Court has clearly observed that there is no provision in Code of Criminal Procedure empowering a Magistrate to

review his own order except by inherent powers which could be invoked only by the High Court and therefore in this case as the learned

Magistrate has set aside his own order of discharge of the accused and restored the case for enquiry, it is without jurisdiction. Unfortunately, these

decisions do not have any bearing for the proceedings stopped u/s 258 Code of Criminal Procedure because the Section is intended to stop the

proceedings for certain reasons. Section 300(5) of the Code of Criminal Procedure permits the same Magistrate or the Court to which the said

Magistrate is subordinate to order for further enquiry. Section 258 of Code of Criminal Procedure reads as follows :-

Power to stop proceedings in certain cases :-

In any summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial

Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any

judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment

of acquittal, and in any other case, release the accused and such release shall have the effect of discharge.

Section 300(5) reads as follows :-

Person once convicted or acquitted not to be tried for same offence.

(1) to (4) ....

(5) A person discharged u/s 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or

of any other Court to which the first-mentioned Court is subordinate.

There is a specific provision u/s 300(5) of the Code of Criminal Procedure empowering the Magistrate or the superior court to try the same case,

which was stopped u/s 258. Therefore, it is futile to argue comparing this proceedings with the order passed u/s 249 of the Code, dismissing the

complaint for the absence of the complainant. When once the private complaint was dismissed u/s 249 Code of Criminal Procedure, certainly it

cannot be restored by the same Magistrate as there is no provision in Code of Criminal Procedure to review the order of dismissal passed by the

same Magistrate. Therefore the abovesaid decisions of the Supreme Court are applicable only for Section 249 but for the proceedings u/s 258,

there is a specific provision u/s 300(5) to try again by the same magistrate or the superior Court. Section 258 Code of Criminal Procedure itself is

intended to stop the proceedings in summons case instituted otherwise than upon complaint. Therefore, this cannot be compared with the

proceedings upon complaint. Secondly, when the Court has stopped the proceedings when no evidence was recorded, the release of the accused

will have the effect of discharge. This order of discharge can be reviewed by the same Magistrate in view of the powers conferred upon him u/s

300(5) Code of Criminal Procedure. Therefore, there is no substance to contend that the learned VI Metropolitan Magistrate had no jurisdiction

to re-open the case.

The learned counsel Mr. S. Venkataraman contended that the learned Magistrate has not given any reasons for reopening the case and no

notice was issued to him before reopening the case and for this reason, the order passed by him is unlawful. Section 300(5) does not indicate that

the reasons have to be given by the Magistrate while ordering for the reopening of the case. No doubt Section 258 specifically mentioned that

when the proceedings was stopped, the Magistrate was bound to record the reasons. In the order passed by the learned Magistrate on 26-10-92

for stopping the proceeding, he has stated that as the police officer did not turn up and the witnesses also were not produced even after several

hearings, he stopped the proceedings. In compliance with the directions in Section 258, the learned Magistrate has given reasons for stopping the

proceedings. In the order dated 29-10-92 for reopening the case also, even though he has not specifically mentioned the reasons for re-opening

the case, he has observed that in view of the circumstances explained by the Sub-Inspector, he permitted for the re-opening of the case.

Therefore, the order refers to the petition of the Sub-Inspector of Police. In the petition filed by the investigating officer, he has stated that the

witnesses had been to North India as they were engaged in a flim shooting and as they had returned, he was prepared to produce the witnesses.

Therefore, accepting these persons offered by the investigating officer, the learned Magistrate had ordered for the re-opening of the case. Section

300(5) Code of Criminal Procedure does not make it mandatory to send notice to the accused person before ordering for re-opening of the case.

It was left to the discretion of the Court either to re-open the case or not. Therefore, want of notice to the accused persons after passing the order

u/s 300(5) Code of Criminal Procedure will not invalidate the order.

One more decision relied upon by the counsel for the petitioner Mr. Venkataraman is the decision of the Punjab High Court in ACHHRU v.

Emperor, 1912 Cri LJ R 860. On a reading of this decision, I find that this also is not applicable for the present case on hand. In that case a

Magistrate proceeded u/s 249 Old Code of Criminal Procedure and stopped the proceedings, but the District Magistrate purporting to act u/s 437

Code of Criminal Procedure (Old Code) set aside the order of the Magistrate. It was contended in that case that the order of the District

Magistrate was ultra vires as he had power to interfere only when a complaint was dismissed u/s 203 or 204 of the Old Code of Criminal

Procedure or where there was discharge of the accused. It was accepted that the District Magistrate had no power u/s 437 Code of Criminal

Procedure to interfere in the order passed u/s 249 Code of Criminal Procedure. The decision in that case related to the power of the District

Magistrate u/s 437 Code of Criminal Procedure. Hence the decision therein, is in no way helpful to the power in controversy in this case. I find no

merit in the argument of the learned counsel for the petitioner that the learned VI Metropolitan Magistrate has no power to re-open the case

stopped u/s 258 Code of Criminal Procedure. The petition, therefore, is not sustainable and deserves to be dismissed.

Accordingly, the petition Crl. O.P. No. 1714/93. is dismissed. Crl. M.P. No. 953 of 1993 is also dismissed as unnecessary.

Petition dismissed.