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Tuesday, August 2, 2016

when a complaint case is dismissed by the Magistrate for non-appearance of the complainant or his counsel and the accused is acquitted, then the Magistrate cannot exercise any inherent power to restore the case in the absence of any specific provisions in the Criminal Procedure Code. However, a second complaint case is permissible in law if it could be brought within the limitation.

PETITIONER:
MAJ. GENL. A.S. GAURAYA & ANR.

Vs.

RESPONDENT:
S.N. THAKUR AND ANR.

DATE OF JUDGMENT25/04/1986

BENCH:
KHALID, V. (J)
BENCH:
KHALID, V. (J)
DUTT, M.M. (J)

CITATION:
 1986 AIR 1440  1986 SCR  (2) 771
 1986 SCC  (2) 709  1986 SCALE  (1)1128


ACT:
     Criminal Procedure Code, 1973  - Whether subordinate
criminal  Courts  have inherent  jurisdiction outside the
provisions of the Code.



HEADNOTE:
     Respondent No.l, complainant, filed a complaint against
the  appellants-accused  in  the   Court  of  the  Judicial
Magistrate, First  Class, New  Delhi disclosing an  offence
punishable under s. 67 and 72-C(l)(a) of the Mines Act, 1952
read  with   Regulation 106   of  the Metallifarous  Mines
Regulation, 1961.  The Magistrate took the complaint on file
and issued  summons to the accused to appear on 6.1.1972. On
6.1.1972  neither  the complainant  nor  the  accused were
present and, therefore,  the  Magistrate  dismissed the
complaint in  default  and  for want  of  prosecution. The
respondent filed an application on 13.1.1972 for restoration
of  the  complaint  and   on  20.1.72, after hearing the
complainant,  the  Magistrate  restored the  complaint and
issued summons to  the accused.  Thereafter  the  accused-
appellants  moved   an application  before  the  Magistrate
stating that the  order   dated   20.1.72   was   without
jurisdiction since the Magistrate had become functus officio
by  order   dated  6.1.72.   The  Magistrate  rejected this
application holding  that he  had inherent  powers under the
code of Criminal Procedure to review and recall his earlier
orders. The  Additional Chief  Judicial Magistrate  and the
Delhi High Court dismissed the first and the second revision
petition filed by the appellants against  the order of the
Magistrate.
     Pursuant to  a judgement delivered by the Supreme Court
on 5th August, 1976 in the case of Bindeshwari Prasad Singh
v. Kali Singh, [1977] 1 S.C.R. 125 holding that no Criminal
Court had any inherent jurisdiction, not provided for in the
Criminal Procedure Code, the appellants moved an application
before the  Metropolitan  Magistrate  contending  that all
proceedings after  the dismissal  of the  complaint by order
dated 6th  January, 1972  were without jurisdiction in the
light
772
of the law laid down by the Supreme Court and requested the
Magistrate  to drop  further  proceedings.  The  Magistrate
accepted this contention and dropped the proceedings against
the  appellants-accused.   Aggrieved  by   this order, the
respondent filed  a revision  before the Additional Sessions
Judge who  reversed the decision of  the Magistrate holding
that a pronouncement as to the position of law in a judicial
decision by the Supreme Court cannot be treated as a sort of
legislation by Parliament giving retrospective effect as to
enjoin re-appointing  of  all  matters which  have  already
become final  and closed.  Thereupon, the appellants filed a
writ petition  before  the  High  Court and  the  same was
dismissed in limine. Hence this appeal by special leave.
     Allowing the appeal.
^
     HELD. 1.  In view of the law laid down by Supreme Court
in Bindeshwari Prasad Singh v. Kali Singh, [1977] 1 S.C.R.
125, the  order of  the High  Court is set aside and that of
the Magistrate dated 6.1.77  dismissing  the  complaint  is
restored. [781 C]
     2.(i)  Section  249  of  the  Criminal  Procedure Code
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
Criminal Procedure  Code enables  a magistrate to acquit the
accused if  the complainant does not appear. Thus, the order
of dismissal  of a  complaint by a criminal court due to the
absence of  a complainant  is a proper order. Therefore, so
far as the accused  is concerned,  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. [776 E-F: 777 G-
H]
     2.(ii) There  is absolutely no provision in the Code of
Criminal Procedure of 1908 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 of
Civil Procedure Code, the  subordinate criminal courts have
no inherent  powers. In these circumstances, therefore, the
learned Magistrate had absolutely no jurisdiction to re-call
the order dismissing the complaint. [778 C-E]
773
     2.(iii) Filing  of a  second complaint  is not the same
thing as  reviving a dismissed complaint after recalling the
order of  dismissal. The  Criminal Procedure  Code does not
contain any  provision enabling the Criminal  Court to use
such an inherent power. A second complaint is permissible in
law if it could be brought within the limitations imposed by
the Supreme  Court in Pramatha Nath Taluqdar v. Saroj Ranjan
Sarkar [1962] Suppl. 2 S.C.R. 297. [777 A-B; 776 H]
     Bindeshwari Prasad Singh v. Kali Singh, [1977] 1 S.C.R.
125, followed.
     B.D. Sethi v. V.P.  Dewan, 1971  Delhi Law  Times 162,
over-ruled.
     3. A  mere reading of Article  141 brings into  sharp
focus its expanse and all pervasive nature. There is nothing
like any prospective operation alone of the law laid down by
the Supreme  Court. The law laid  down by the Supreme Court
applies to all pending proceedings. [780 D; 779 E]
     Shenoy and Co. v. Commercial Tax Officer,  [1985]  2
S.C.C. 512, relied upon.
     In the  instant case,  the Additional  Sessions  Judge
overlooked the binding nature of the law declared  by the
Supreme Court mandating  under   Art.  141, every  court
subordinate to this Court to accept it. The High Court could
have, if  it had  examined the matter, corrected  the error
into which  the Sessions Judge fell. The observations of the
Sessions Judge disclose a  confusion of  thought about the
effect of  decision rendered  by the  Supreme  Court  and  a
misreading of Article 141 of the Constitution. [779 F-G;D-E]



JUDGMENT:
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
184 of 1979.
     From the  Judgment and  Order dated  the 9.8.78  of the
Delhi High Court in Criminal Misc. No. 391 of 1978.
     Rajender Nath  Sachar, D.N.  Mishra, Ms. L. Goswami and
T.M. Ansari with him for the Petitioners.
774
     V. Mahajan and C.V. Subba Rao for the Respondents.
     The Judgment of the Court was delivered by
     KHALID, J. This  Criminal appeal by  special  leave,
involves the question :
 Whether a  Sub-ordinate  Criminal  Court  has any
 inherent jurisdiction outside the  provisions  of
 the Criminal Procedure Code ?
Incidentally, the  scope of  Article 141 of the Constitution
also comes up for consideration.
     The  facts of  the  case can  be stated first. The
appellants, two in number,  are the  accused in a complaint
filed by  the first  respondent in the Court of the Judicial
Magistrate, First  Class, New  Delhi, disclosing  an offence
punishable under  Section 67 and 72C(l)(a) of the Mines Act,
1952, read  with Regulation  106 of  the Metallifarous Mines
Regulation 1961.  The learned  Magistrate took the complaint
on file and issued  summons to the accused  to  appear  on
6.1.1972. On  6.1.1972 neither  the  complainant  nor the
accused were  present and  therefore, the  Magistrate passed
the following order :
 "Accused  not  present.  None   present  for the
 complainant  also.   The   complaint is   hereby
 dismissed in default and for want of prosecution."
On 13.1.1972,  the  complainant filed an  application for
restoration of the complaint. On 20.1.1972, the Magistrate
passed the following order :
 "I  heard   Shri  T.S.  Sodhi.  The  complaint  be
 restored. Summon accused for 21/2."
On 21.2.1972,  the accused  petitioners moved an application
before the Magistrate stating that the order dated 20.1.1972
was without  jurisdiction since the Magistrate had  become
functus officio,   by his   order  dated   6.1.1972. This
application was rejected by  the Magistrate  by  his  order
dated 8.5.1972. He was of the view that  he had  inherent
powers under  the Code of Criminal  Procedure to review and
re-call his earlier orders.
775
     Aggrieved by  this order, the petitioners filed a  A
revision before the  Court  of Additional  Chief  Judicial
Magistrate, New Delhi, which was dismissed on 6/7/1973.
     This was  followed by  another revision before the High
Court of  Delhi. The Delhi High Court dismissed the revision
by its order  dated  10.1.1975,  relying  upon an  earlier
decision of  the same  Court to the effect  that a criminal
court had  certain inherent  powers, though not specifically
mentioned in the Code.
     On 5.8.1976,  this Court  delivered its Judgment in the
case of Bindeshwari Prasad  Singh  v. Kali  Singh,  [1977]
S.C.R. 125  holding that  no criminal court had any inherent
jurisdiction, not  provided for in the Criminal  Procedure
Code. The  petitioners, armed  with this  decision, moved an
application   before the   Metropolitan   Magistrate  on
22.12.1976,  contending that  all  proceedings,  after the
dismissal of  the complaint  by order  dated 6.1.1972, were
without jurisdiction  in the  light of the law laid down by
this Court  and requested  the Magistrate  to  drop  fruther
proceedings. The  learned Metropolitan Magistrate  accepted
this contention and by his order dated 16.7.1977 dropped the
proceedings against the petitioners.
     Aggrieved by  this  order,  the  respondents  filed  a
revision  before   the Sessions   Judge,  New Delhi. The
Additional Sessions  Judge, New Delhi, to  whom  this case
stood transferred,  reversed the  decision of the Magistrate
by his order dated  7.1.1978 and  held that  : "so  for  as
Article 141  of the  Constitution of  India and the ratio of
these decisions is  concerned, there can  be no  dispute
whatsoever. At the same  time a  pronouncement as  to the
position of  law in a judicial decision by the Supreme Court
cannot be treated as a sort of legislation by the Parliament
giving retrospective  effect as to enjoin  reopening of all
matters which have already become final and closed."
     Aggrieved by this order the petitioners moved the Delhi
High Court  under Article  227 of  the Constitution of India
read with  Section 482 of the Code of Criminal Procedure, to
quash further proceedings, relying upon the decision of this
Court mentioned above and  contending that the order of the
Sessions
776
Judge was  wrong. This revision petition  was dismissed  in
limine by the High Court on 9.8.1978, observing :
 "I find no sufficient reason to interfere with the
 impugned order. Dismissed."
It is against this order that this appeal has been filed.
     The first question to  be considered  is whether the
Magistrate could  have re-called  his order.  It  cannot  be
disputed  that the  Magistrate has  powers  to  dismiss  a
complaint and  discharge the accused when the complainant is
absent. In  Ram Prasad Maitra v. Emperor, 1928 A.I.R. - Cal.
569 a  division bench  of the  Calcutta High  Court  had  to
consider  the question  whether  the Sessions  judge was
justified in  directing the complaint to be sent back to the
Magistrate  for further  enquiry  when the  complaint was
dismissed under section 203  of  Criminal  Procedure  Code.
Answering the question in the negative, it was observed :
 "...... In a case like this, where the complainant
 does not  choose to be present, he cannot be heard
 afterwards to say that  the matter should be sent
 back to the Magistrate for further enquiry..."
This  Judgment indirectly  recognises  the  power   in  a
Magistrate to dismiss a complaint for default. We agree with
this conclusion.
     Section 249  of the  Criminal Procedure  Code 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 Criminal Procedure Code
enables a   Magistrate to   acquit  the   accused  if the
complainant does not appear. Thus, the order of dismissal of
a complaint  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]
777
Suppl. 2 S.C.R. 297. Filing of a second complaint is not the
A  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.
     In B.D. Sethi v. V.P. Dewan, 1971 Delhi Law Times 162 a
division  bench  of  the  Delhi  High Court  held  that  a
Magistrate could  revive a  dismissed  complaint  since the
order dismissing the complaint was not a Judgment or a final
order. In paragraph 9, the Court observes as follows :
 "9. As  long as  the order  of the Magistrate does
 not amount to a Judgment or a final order there is
 nothing  in the  Code   of Criminal   Procedure
 prohibiting the  Magistrate  from  entertaining  a
 fresh application  asking for the same  relief on
 the same facts or from re-considering that order.
 During the course of the proceedings, a Magistrate
 has to  pass various interlocutory orders  and it
 will not  be correct  to  say  that he  has  no
 jurisdiction to re-consider them.."
We would like to point out that this approach is wrong. 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 re-call
the order  of dismissal of the complaint. The Delhi High
Court referred to various decisions dealing with section 367
(old code)  of the Criminal Procedure Code as to 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 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.
778
     For our  purpose, this  matter is now concluded  by  a
judgment of  this Court in the case of  Bindeshwari Prasad
Singh v.  Kali Singh,  [1977] 1 S.C.R. 125. We may usefully
quote the following passage at page 126 :
 ".......  Even   if the   Magistrate   had any
 jurisdiction to  re-call 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  re-calling 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  re-call 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 of Civil Procedure Code,
 the subordinate  criminal courts  have no inherent
 powers. In  these  circumstances,  therefore, the
 learned Magistrate  had absolutely no jurisdiction
 to re-call 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 re-call that
 order on   any  ground   whatsoever.  In   these
 circumstances, therefore,  the order even if there
 be one,  re-calling order dismissing the complaint
 was entirely without jurisdiction. This being the
 position,  all  subsequent  proceedings  following
 upon re-calling  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 re-calling the order
 of dismissal of the complaint would amount to a
 fresh complaint. We are,
779
 however, unable  to  agree  with  this  contention
 because there was no fresh complaint and it is not
 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   (supra).   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 hereby quashed.
     When  the matter went  before  the  High Court, the
decision of this Court referred above must have been brought
to its notice, since  the order  by the Additional Sessions
Judge refers  to it.  We would have happy if the High Court
had considered the matter in some detail especially when its
attention was  drawn to this decision instead of dismissing
the revision  in limine.  The observations  of the  Sessions
Judge, extracted  above, discloses  a confusion of  thought
about the  effect of a decision rendered by this Count and a
misreading of  Article 141  of the  constitution.  There  is
nothing like any prospective operation alone of the law laid
down by this Court. The law laid down by this court applies
to all pending proceedings.  If  the Sessions  Judge had
expressed his  helplessness because  of the earlier order of
the High  Court binding on him and had allowed the revision
on that ground, we  could  have  understood  the  reasoning
behind it. He got rid of the effect of this Court's Judgment
by observing that a decision by this Court cannot be treated
as "a sort of legislation by Parliament" and thus overlooked
the binding  nature of the  law  declared  by this  Court,
mandating under Article 141,  every Courts  subordinate  to
this Court to accept it. The High Court could have if it had
examined the  matter, corrected the error  into  which the
Sessions Judge fell.
     The sweep of Article 141 of the Constitution, so far as
the Judgments  of this Court are  concerned,  came  up for
consideration before  this Court  recently in Shenoy and Co.
v. Commercial  Tax Officer,  [1985] (2) S.C.C. 512 to which
one of us was a party. It is not necessary to refer to the
facts of  that case,  in detail.  Suffice it to say that the
contention
780
that the  law laid  down by this Court in an appeal filed by
the State  would not bind the other parties against whom the
State of  Karnataka did not  file  appeals  from  a  common
Judgment, was repelled by this Court in the following words:
 "....It is,  therefore, idle to contend  that the
 law laid down by this Court in that Judgment would
 bind only  the Hansa Corporation and not the other
 petitioners against  whom the State of  Karnataka
 had not  filed any  appeal. To  do so is to ignore
 the binding  nature of  a judgment  of this  Court
 under Article 141 of the Constitution. Article 141
 reads as follows :
 "The law  declared by the Supreme  Court shall be
 binding on  all courts  within  the  territory  of
 India." A mere reading of this article brings into
 sharp focus  its  expanse  and  is  all  pervasive
 nature.  In cases  like   this,  where  numerous
 petitions are disposed of by a common judgment and
 only one  appeal is  filed,  the  parties  to the
 common judgment  could very  well have  and should
 have intervened and could have requested the Court
 to hear  them also.  They cannot  be heard  to say
 that the  decision was  taken by this Court behind
 their back  or profess  ignorance of the fact that
 an appeal  had been filed by the State against the
 common judgment....
 To contend  that this conclusion applies  only to
 the party  before this  Court is  to destroy the
 efficacy and integrity of the judgment and to make
 the mandate  of Article  141 illusory. But setting
 aside the  common judgment  of the High Court, the
 mandamus issued  by the  High Court is  rendered
 ineffective not  only in  one  case but  in all
 cases."
Normally, when several matters are disposed of by a common
Judgment, and  the defeated  party  files  only one  appeal
against one  such matter  and succeeds in that matter,  he
would still  be faced  with the plea  of  finality  of the
Judgment based on res-judicata by those against whom appeals
were not  filed. But this plea did not find favour with this
Court in the above
781
case. It  was held  that the Judgment rendered by this Court
in one appeal, took away the finality of the common Judgment
even against  those against  whom  appeals  were  not  filed
because of the all pervasive operation of Article 141.
     We do  not think it necessary to probe further into the
facts of  this case and lengthen this Judgment, for one good
reason; this  case has moved along  the  files of  various
Courts for  more than  15 years and it is high time that we
give it a decent  burial. In  view of the law laid down by
this Court in Bindeshwari Prasad Singh's case (supra) we set
aside the  order of  the High  Court, allow  this appeal and
restore the   order  of   the Magistrate,  dated  6.1.1972
dismissing the complaint.
M.L.A.     Appeal allowed.
782



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