Patna High Court
Jagarnath Singh vs Krishna Mangal Singh And Anr. on 29 January, 1999
Equivalent citations: 1999(1)BLJR540
JUDGMENT Narbdeshwar Pandey, J.
1. By means of this petition under Section 482 of the Code of Criminal Procedure (in short 'the Code') the petitioner has prayed for quashing the order of the Sub-Divisional Judicial Magistrate. Sheohar, Sitamarhi, dated 19th August. 1993 incase No. C. 1/47 of 1991 Tr. No. 383/93, whereby and whereunder, cognizance for the offences under Sections 327 and 328 of the Indian Penal Code has been taken with a direction for issuance of non-bailable warrant of arrest.
2. It would appear from the materials on record that on the basis of Fard-beyan of Opp. party No. 1, the police registered Sheohar P.S. Case No. 16 dated 12th April, 1988 under Sections 307 and 428 of the Indian Penal Code, which was later converted under Sections 307 and 328 of the Indian Penal Code. The police, however, upon investigation being satisfied that no case is made out, submitted a final report. Although the Chief Judicial Magistrate by order dated 25th January, 1991 accepted the final report, but having regard to the pendency of protest petition, directed the complainant/Opp. party No. 1 to appear for examination on solemn affirmation on 23rd February, 1992. Ultimately the case was adjourned to 9th April, 1991. But due to ailment. The complainant/opposite party could not appear in the Court, hence the complaint was dismissed under Section 203 of the Code.
3. On 30th April, 1991 the complainant filed another complaint with a prayer before the Court to take cognizance against the accused persons. Undisputedly thereafter, on 2nd May. 1991 the complainant was examined on solemn affirmation and ultimately by the impugned order the Court being satisfied that prima facie case was made out against the accused persons, took cognizance of the offences.
4. Learned Counsel appearing for the petitioner contended that the impugned order is quite illegal since the learned Magistrate had no Jurisdiction to review his previous order, whereby, the complaint was dismissed under Section 203 of the Code.
5. Before elaborating the question that has been raised above, it would be appropriate to examine whether the impugned order passed by the Magistrate amounts to review of the order dated 9th April, 1991 or it was an order explicit on the second complaint for taking cognizance. As would appear from the first order dated 9th April, 1991 that the date was fixed for examination of the complainant on solemn affirmation but since he did not appear, therefore, the complaint was dismissed under Section 203 of the Code.
6. In my view, it would not be out of. place to mention at this stage itself that such an order can not be said to be an order under Section 203 of the Code. Because admittedly as yet the statement of the complainant and his witnesses were not examined on oath. If the complainant did not turn up on the date fixed. The dismissal of complaint can not be construed under Section 203 of the Code.
7. Coming to the point at issue, undisputedly in absence of any specific provision in the Code, a Magistrate can not exercise any inherent Jurisdiction, to restore the case. The Code of Criminal Procedure does not contain any specific provision enabling the Criminal Court to exercise such an inherent power. A reference In this regard can be usefully made to a decision of the Apex Court in the case of Maj. Conl. A.S. Gauraya and Anr. v. S.N. Thakur and Anr. . In paragraph No. 9 of the judgment the Court observed in these words-
... 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. Filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal Procedure Code does not contain any provision enabling the criminal Court to exercise such an inherent power.
8. But apparently in the case before me no decision for review of the previous order appears to have been taken. Because undisputedly the impugned order taking cognizance against the petitioner has been passed on the basic of the Second complaint filed on 30th April, 1991 (Annexure-5), solemn affirmation of which was made on 2nd May, 1991.
9. As would appear from the views expressed by the Apex Court In the case of Pramatho Nath Talukdar v. Saroj Ranjan Sarkar , a second complaint is permissible in law in appropriate cases. The filling of a second complaint is not the same thing as reviewing a dismissed complaint.
10. For the reasons stated above, in my view, it would not be proper to construe the impugned order as an order for review of the previous order dated 9th April, 1991. The question, therefore, having been answered In the negative to the petitioners, this petition is, thus, dismissed as devoid of any merits.