Bindesi Iwari Prasad Singh Vs. Kali
Singh  INSC 169 (5 August 1976)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
CITATION: 1977 AIR 2432 1977 SCR (1) 125 1977
SCC (1) 57
CITATOR INFO :
F 1986 SC1440 (5,11,14)
Code of Criminal Procedure 1908--Whether
Magistrate has jurisdiction to recall dismissal order made u/s 203--Application
for recalling dismissal order whether amounts to fresh complaint.
The respondent's complaint against the
appellant regarding a trivial matter was tossed for three years between various
magistrates for inquiry and report without conclusive results, and was
ultimately dismissed under section 203 Cr.P.C. Thereafter on an application by
the respondent for recalling his dismissal order, the Magistrate again sent/the
case for inquiry ultimately issued process against the accused.
The appellant contended before this Court
that the Magistrate had no jurisdiction to recall his order of dismissal.
According to the respondent, his application
for recalling the dismissal-order, would amount to a fresh complaint.
Allowing the appeal, this Court,
HELD: (1 ) There is absolutely no provision
in the Code of Criminal Procedure of 1908 (which applies to this case)
empowering a Magistrate to review or recall an order passed by him. Unlike
section 151 of the Civil Procedure Code, the subordinate criminal courts have
no inherent powers. After having passed the order, the Sub-Divisional
Magistrate became functus officio and had no power to review or recall that
order on any ground whatsoever. [126 G-H; 127 A] (2) There was no fresh
complaint and it is now well settled that a second complaint can be only on
fresh facts or even on the previous facts only if a special case is made out.
[127 C-D] Pramatha Nath Taluqdar v. Saroj
Ranjan Sarkar,  (2) S.C.R. Supp. 297, followed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 74 of 1976.
Appeal by Special Leave from the Judgment and
'Order dated 28-7-75 of the Patna High Court in Criminal Revision No. 1046 of
A.K. Sen and A.K. Nag for the Appellant.
D. Gobrudhan, for the respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal by special leave exhibits the careless and cavalior
manner in which the Sub-Divisional Magistrate appears to have dealt with the
complaint filed before him as far back as 21st February, 1966. The complaint
itself contains allegations of a very petty nature, of which hardly any
cognizance could have been taken and which would be a trivial act under Sec. 95
of Indian Penal Code for which no criminal proceedings could be taken.
There were proceedings under Section 107
between the parties and both 126 parties applied for copies of .these
proceedings on the 20th December, 1965. It is alleged in the complaint that the
appellant got the copy which was meant for the complainant, by signing his
name. The complainant also got his copy a few days after eventually. Such a
small matter could have been resolved by the Magistrate himself if he had
persued the complaint carefully and was certainly not a , matter for which a
detailed inquiry under section 202, Code of Criminal Procedure, 1908 was called
for. It appears, however, that the Magistrate tossed the complaint from one
Magistrate to another for inquiry and report, without conclusive results,
starting from 21st February 1966 to 23rd November 1968, that is, for a period
of more than two years. Ultimately, on the 23rd November, 1968 the complaint
was dismissed under section 203 of the Criminal Procedure Code on the ground
that the complainant was absent and did not show any interest in the inquiry
ordered by the Court.
On the 7th of December, 1968 the respondent
appeared before the Magistrate and filed an application for recalling his
order. The Magistrate passed no orders on this application but he sent the
case' for inquiry to Mr. K.P. Sinha, another Magistrate. Thereafter, the matter
was sent to Mr.
S.N. Dube on 30th of October, 1969. Mr, Dube
reported that the inquiry had been completed and hence he returned the papers.
of inquiry to the Magistrate. On 9th of December, 1970, the Magistrate recalled
the inquiry from Mr. K.P.
Sinha and transferred to Mr. A.R. Ansari and
on the basis of his report, the learned Magistrate passed the order taking cognizance
of the case and summoned the accused by his order dated 3-5-1972, and issued
processes against the appellants.
It would thus appear that a very petty matter
was allowed to have a long and chequered career because the Magistrate refused
to apply his mind either to the' allegations made in the complaint or to
control the proceedings before him.
In support of the appeal Mr, Nag has
submitted a short point. He has contended that the Magistrate had no jurisdiction
to recall the order dated 23-11-1968, by which he had dismissed the complaint
under Section 203 of the Code of Criminal Procedure. In fact, there was no
express order recalling the order dismissing the complaint, but by a process of
deeming fiction the Magistrate thought that the order dismissing the complaint
We might mention that the order dated 23rd
November, 1968 was a judicial order by which the Magistrate had given full
reasons for dismissing the complaint. Even if the Magistrate had any
jurisdiction to recall this order, it could have been done by another judicial
order after giving reasons that he was satisfied that a case was made out for
recalling the order. We, however, need not dilate on this point because there
is absolutely no provision in the Code of Criminal Procedure of 1908 (which
applies to this case) empowering a Magistrate to. review or recall an order
passed by him. Code of Criminal Procedure does contain a provision for inherent
powers, namely, Section 561-A which, however, confers these powers on the High
Court and the High Court alone. Unlike Section 151 127 of Civil Procedure Code,
the subordinate criminal courts have no inherent powers. In these
circumstances, therefore, the learned Magistrate had absolutely no jurisdiction
to recall the order dismissing the complaint. The remedy of the respondent was
to move the Sessions Judge or the High Court in revision. In fact after having
passed the order dated 23-11-1968, the Sub-Divisional Magistrate became functus
officio and had no power to review or recall that order on any ground
whatsoever. In these circumstances, therefore, the order even if there be one,
recalling order dismissing the complaint, was entirely without jurisdiction.
This being the position, all subsequent
proceedings following upon recalling the said order would fall to the ground
including order dated 3-5-1972 summoning the accused which must also be treated
to be a nullity and destitute of any legal effect. The High Court has not at
all considered this important aspect of the matter which alone was sufficient
to put an end to these proceedings. It was suggested by Mr. D.
Goburdhan that the application given by him
for recalling the order of dismissal of the complaint would amount to a fresh
complaint. We are, however, unable to agree with this contention because there
was no fresh complaint and it is now well settled that a second complaint can
lie only on fresh facts or even on the previous facts only if a special case is
made out. This has been held by this Court in Pramatha Nath Taluqdar v. Saroj
Ranjan Sarkar(1). For these reasons therefore, the appeal is allowed. The Order
of the High Court maintaining the order of the Magistrate dated 3-5-1972 is set
aside and the order of the Magistrate dated 3-5-1972 summoning the appellant is
(1)  2 Supp. S.C.R. 297.