Punjab-Haryana High Court
Ishan Singh vs M/S Spaze Towers on 15 October, 2024
Neutral Citation No:=2024:PHHC:134879
CRM-M-42105-2024 (O&M)
1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
112 CRM-M-42105-2024 (O&M)
Date of Decision: 15.10.2024
ISHAN SINGH ....Petitioner
VERSUS
M/S SPAZE TOWERS ....Respondent
CORAM : HON'BLE MRS. JUSTICE MANISHA BATRA
Present : Mr. Reshabh Bajaj, Advocate for the petitioner.
MANISHA BATRA, J. (Oral)
1. The instant petition has been filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short BNSS) seeking set aside of order dated 16.03.2024 passed by the Court of Additional Sessions Judge-cum-Presiding Judge, Exclusive Commercial Court, Gurugram in case bearing CRM No.80 of 2024 titled as 'Ishan Singh Vs M/s Spaze Towers' whereby a complaint filed by the present petitioner under Section 340 read with Section 195 of Code of Criminal Procedure was dismissed in default for want of appearance of the petitioner. He has further sought quashing of order dated 03.06.2024 passed in the same case whereby an application moved by the petitioner for restoration of the CRM No.80 of 2024 was dismissed. Prayer has also been made for issuing directions to the concerned Court for restoration of the aforementioned complaint.
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2. Brief facts relevant for the disposal of the petition are that the respondent has filed a petition under Section 34 of Arbitration and Conciliation Act, 1996 which is pending before the Presiding Judge, Commercial Court at Gurugram. The present petitioner who is respondent in the aforementioned arbitration petition, filed an application/complaint under Section 340 read with Section 195 of Cr.P.C seeking action against the present respondent-company. The said application/complaint was adjourned for 16.03.2024 for recording preliminary evidence of the present petitioner/complainant. However, since neither the petitioner himself nor his counsel appeared in the said complaint, therefore, the same was dismissed in default for want of prosecution on the same day. The petitioner then filed an application (Annexure P-4) seeking restoration of the complaint under Section 340 Cr.P.C. and recall of order dated 16.03.2024 but the said prayer had been declined by the concerned Court vide order dated 03.06.2024.
3. It is argued by learned counsel for the petitioner that the order dated 16.03.2024 is liable to be set aside as the absence of the petitioner on that date from the Commercial Court was not intentional or deliberate but had occasioned due to reasons beyond his control since he was attending hearing of a matter bearing CRM-M-70-2024 before this Court and was unable to travel to Gurugram. His counsel did not appear on that date. It is further argued that the learned Commercial Court while dismissing the application filed by him for restoration of the complaint under Section 340 Cr.P.C vide order dated 03.06.2024, observed that it had no power to recall 2 of 6 ::: Downloaded on - 10-11-2024 16:06:54 ::: Neutral Citation No:=2024:PHHC:134879 CRM-M-42105-2024 (O&M) 3 its order. The learned Court without going into the merits of the complaint filed by the petitioner, had dismissed the application on the ground of maintainability. By passing of the impugned order, grave miscarriage of justice has been caused to the petitioner. This Court has inherent jurisdiction to restore the complaint filed by the petitioner under Section 340 Cr.P.C. A hasty approach has been adopted by the Court of Additional Sessions Judge/Exclusive Commercial Court while dismissing the complaint filed by the petitioner. With these broad submission, it is urged that the impugned order are liable to be set aside, the present petition deserves to be allowed and the complaint filed by him under Section 340 Cr.P.C deserves to be restored.
3. I have heard learned counsel for the petitioner at considerable length and have gone through the record.
4. On perusal of record, it is revealed that the present petitioner had filed a complaint/petition under Section 340 read with Section 195 of Cr.P.C seeking action against the respondent. On 16.03.2024, his complaint had been dismissed on account of non-appearance of the petitioner. The learned Additional Sessions Judge had further declined the prayer made by the petitioner for restoration of the complaint on the ground of non- maintainability and by observing that he could not recall or review the order passed by him qua dismissal of the complaint for want of prosecution. It is well settled proposition of law that a Magistrate/Additional Sessions Judge has no jurisdiction to recall the order dismissing the complaint as after 3 of 6 ::: Downloaded on - 10-11-2024 16:06:54 ::: Neutral Citation No:=2024:PHHC:134879 CRM-M-42105-2024 (O&M) 4 passing such order, his/her Court becomes functus officio and has no power to review or recall such order on any ground whatsoever.
5. Reference in this regard can be made to 'Major General A.S. Gauraya Vs S.N. Thakur 1988 (1) RCR (Crl.)' wherein it was observed that dismissal of a complaint for non appearance of the complainant 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. Similar observations were made in 'Bindeshwari Prasad Singh Vs Kali Singh, 1977 AIR (SC) 2432' wherein it was observed that in case of dismissal of a complaint, the Magistrate has no jurisdiction to recall the order and the remedy for the complainant is to file a revision. A Co-ordinate Bench of this Court in CRM-M-3505-2020 titled as 'M/s Minikin Agro India Pvt. Ltd. AND ANR. Vs State of Punjab and Ors.' decided 02.05.2022 had observed that the order dismissing a complaint in default would be final order and no application for reviewing or recalling of the said order is maintainable since there is no provision in the Code of Criminal Procedure vesting inherent jurisdiction or giving power to review or recall a final order. In this case, the order dated 16.03.2024 had been passed by learned Additional Sessions Judge thereby dismissing the complaint filed by the petitioner in default for want of prosecution due to absence of the present petitioner. No illegality or infirmity could be pointed out in this order by learned counsel for the petitioner nor the same can be seen from the record. So far as the order dated 03.06.2024 is concerned, the 4 of 6 ::: Downloaded on - 10-11-2024 16:06:54 ::: Neutral Citation No:=2024:PHHC:134879 CRM-M-42105-2024 (O&M) 5 learned Additional Sessions Judge rightly observed while passing the same, his Court had become funtus officio and after passing the order dated 16.03.2024, there is no power to review or recall the order dated 16.03.2024 in the absence of any provision in the Code of Criminal Procedure vesting inherent jurisdiction with his Court. This order is also not suffering from any illegality or irregularity and therefore, the same does not deserve to be interfered with.
6. Now coming to the question as to whether this Court while exercising its power under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 which is analogous to Section 482 of Cr.P.C. can interfere with the impugned order. In my considered opinion, the answer should be in negative in view of the fact that the order dated 16.03.2024 was a judicial order giving details of the reason for dismissal of the complaint filed by the petitioner. There is no provision in the Code of Criminal Procedure empowering the Magistrate/Additional Sessions Judge to review or recall order passed by him. The order dated 16.03.2024 could be modified or set aside by a Superior Court. However, the petitioner did not approach the Superior Court at the first instance and chose to file an application for restoration of the complaint before the concerned Court only. The powers under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 which is analogous to Section 482 Cr.P.C are to be exercised sparingly and with caution and only where exercise thereof is justified by the test specifically laid down in the provision itself. However, no such sparing or extraordinary 5 of 6 ::: Downloaded on - 10-11-2024 16:06:54 ::: Neutral Citation No:=2024:PHHC:134879 CRM-M-42105-2024 (O&M) 6 circumstance has been made out in this case warranting exercise of such power. Keeping in view the above facts and circumstances, it is held that the petition does not deserve to be allowed. Accordingly, the petition is dismissed.
7. It is, however, clarified that this order will not come in the way of petitioner to seek appropriate remedy in accordance with law with respect to the complaint in question.
( MANISHA BATRA ) 15.10.2024 JUDGE Deepak Patwal
1. Whether speaking/reasoned : Yes/No
2. Whether reportable : Yes/No 6 of 6 ::: Downloaded on - 10-11-2024 16:06:54 :::