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Report No. 141

3.19. Position arising in the context of 1986 judgment of Supreme Court.-

In a case decided in 1986, the Supreme Court,1 answering a broad question, namely, "whether a subordinate criminal court has any inherent jurisdiction outside the provisions of the Criminal Procedure Code", held that no such power existed.

1. A.S. Gauraya v. S.N. Thakur, 1986 Cri LJ 1074 (SC): 1986 (2) SCC 709.

The facts may be stated in detail. A complaint had been filed under sections 67 and 72C(1)(a), Mines Act, 1952 read with the relevant Regulations made under the Act. On the date fixed for appearance of the accused, neither the complainant nor the accused appeared and the trial court dismissed the case for default. The complainant applied for restoration of the case to the Magistrate and restoration was ordered. The accused, however, applied before the Magistrate and challenged the order as being without jurisdiction. The Magistrate rejected the application of the accused, holding that he had inherent power to review and recall his earlier order.

The accused then applied in revision to the Sessions Judge and the High Court, but both of them rejected the application of the accused. Thereafter, the accused moved another application before the Magistrate, relying on the judgment of the Supreme Court in Bindeshwari Prasad v. Kali Singh, AIR 1977 SC 2432. That judgment had held that no criminal court had an inherent jurisdiction not provided for in the Code. Accepting the application of the accused, the Magistrate dropped the proceedings against the accused.

This time, it was the complainant who was aggrieved by the order of the Magistrate and he filed a revision petition before the Sessions Judge, which was accepted and the order of the Magistrate, dropping the proceedings, was set aside. The complainant aggrieved by the order of the Magistrate, filed a revised petition before the Sessions Court. The accused approached the Delhi High Court by way of petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973. The petition was dismissed in limine by the High Court. The accused filed an appeal before the Supreme Court. The Supreme Court allowed the appeal and observed:-

"What the court has to see, is not whether the Code of Criminal Procedure contains any provision 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. It was relying upon this decision that the Delhi High Court in this case directed the Magistrate to recall the order of dismissal of the complaint.

The Delhi High Court referred to various decisions dealing with section 367 of the Criminal Procedure Code (of 1898) as what should be the contents of a judgment. In our view, the entire discussion is misplaced. So far as the accused is concerned, dismissal of a complaint for non appearance of the complainant or his charge 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."

In the course of its judgment, (in paragraphs 9 and 10) the Supreme Court (apparently referring to the Code of 1973), made the following observations:-

"9. Section 249 of the Cr. P.C. enables a Magistrate to discharge the accused when the complainant is absent and when the conditions laid down in the said section are satisfied. Section 256(1) of the Cr. P.C. enables a Magistrate to acquit the accused if the complainant does not appear. Thus, the order of dismissal of a complainant by a criminal court due to the absence of a complainant is a proper order. But the question remains whether a Magistrate can restore a complaint to his file by revoking his earlier order dismissing it for the non-appearance of the complainant and proceed with it when an application is made by the complainant to revive it.

A second complaint is permissible in law, if it could be brought within the limitations imposed by this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, 1962 Supp (2) SCR 297: AIR 1962 SC 876, filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Cr. P.C. does not contain any provision enabling the criminal Court to exercise such an inherent power."

Need for amending the Law as regards to the Power of Courts to Restore Criminal Revision Applications and Criminal cases dismissed for Default in Appearance Back

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