Sita Ram and Others vs Smt. Shakuntla Devi

S.S. Grewal, J.—This petition u/s 482 of the Criminal P.C. 1973 (hereinafter referred to as the Code) relates to quashment of order passed by the Additional Sessions Judge, Ludhiana dated 2nd of Dec. 1987, Annexure P/ 5, whereby the revision petition filed by the accused petitioners against the order dated 26th of March, 1987 passed by the Judicial Magistrate 1st Class, Ludhiana, Annexure P/4 refusing to set aside the order for restoration of complaint dated 14-12-1985, was dismissed.

In brief facts relevant for the disposal of this petition, are, that the complainant-respondent filed complaint Under Sections 323/452/ 504/506/436/354/440/148/149 of the Penal Code against the petitioners wherein all the accused were summoned by the Judicial Magistrate 1st Class, Ludhiana u/s 452 of the Penal Code, Besides, Chhote Lal and Sita Ram were summoned u/s 506 of the Penal Code. Thereafter the complaint was at evidence stage and on 9th of Nov. 1985, the date fixed before the Judicial Magistrate 1st Class, the complainant did not appear and on that ground the complaint was dismissed in default. After that the complainant moved an application for restoration on the ground that her son had received knife injury on 8th of Nov. 1985 and she had gone to the hospital and remained with her injured son. On that basis the Judicial Magistrate concerned ordered restoration of the complaint vide his order dated 14th Dec. 1985. Revision petition filed by the accused petitioners against the order of the Judicial Magistrate for restoration of complaint dismissed in default dated 14th Dec. 1985 was dismissed by the Additional Sessions Judge, Ludhiana, on 2nd of Dec. 1987.

The learned counsel for the parties were heard.

Reliance has rightly been placed by the learned counsel for the petitioners on the authority of the apex Court in Maj Genl. A. S. Gauraya v. S. N. Thakur, wherein it was held as under :--

So far as the accused is concerned, dismissal of a complaint for non-appearance of the complaint or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction, to restore the case. A second complaint is permissible in law if it could be brought within the limitations imposed by the Supreme Court in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, . Filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal P.C. does not contain any provision enabling the criminal court to exercise such an inherent power. Also, what the court has to see is not whether the Code contains any 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 provision enabling a Magistrate to exercise an inherent jurisdiction which he otherwise does not have.

On behalf of the complainant, it was submitted that since the offence u/s 436 of the Penal Code was exclusively triable by the Court of Session, the Magistrate had no jurisdiction to dismiss the complaint in default.

The argument is devoid of any merit. In Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, the apex Court held that at the stage of issuing process the magistrate is mainly concerned with the allegations made in the complaint of the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one.

Following earlier decisions in Chandra Deo Singh Vs. Prokash Chandra Bose and Another, and Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker and Another, their lordships of the Supreme Court in Smt. Nagawa''s case (supra) further held that the scope of the inquiry u/s 202 of the Criminal P.C. is extremely limited--limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (i) on the materials placed by the complainant before the Court (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out, and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact it is well settled that in proceedings u/s 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.

Besides the order passed by the Judicial Magistrate in summoning the accused with regard to offences other than those u/s 436 of the Penal Code, has become final as none of the parties has challenged the said order so far. Nor in view of the facts and circumstances of the present case it can be said that the impugned order passed by the Judicial Magistrate summoning the accused u/s 452 and some of the accused u/s 506 Penal Code as well, is illegal or without jurisdiction.

For the foregoing reasons, this petition is allowed and the impugned orders passed by the Courts below concerning restoration of the original complaint dismissed in default are set aside being without jurisdiction. However, if so advised, the complainant may avail of other legal remedies open to her.