MATA DIN Vs. RAM BABU

JUDGEMENT

(1.) This reference under Section 395 (2), Code of criminal Procedure, 1973 (for short the Code) by an Additional Sessions Judge, raises the following question for opinion of this Court: What is the ambit of powers of a Magistrate on an application for restoration of the complaint moved by a complainant, after his complaint had been already dismissed for his Don-appearance vis-a-vis: (a) a compoundable or non-cognizable case; (b) a cognizable or non-compoundable case.

(2.) The facts leading to the reference in brief are that Ram Babu-respondent No.1 instituted a complaint against Mata Din and others in the court of a Metropolitan Magistrate under Sections 452, 324, 323 read with Section 34, Indian Penal Code (for short IPC). The accused were summoned by Shri Gurdeep Kumar, Metropolitan Magistrate vide order dated 13th March 1981 to stand trial for offences under Sections 452/324 and 322/34 I.P.C. Later, on 9th November 1982 the successor court presided over by Shri K.C. Lohia, Metropolitan Magistrate, dismissed the said complaint. It passed the following order: None for the parties. It is 3.45 p.m. The case is called several times. So the case is dismissed in default. The file be consigned to the Record Room.

(3.) After about a month i.e. on 9th December, 1982, the complainant-Ram Babu moved an application for restoration of the complaint contending that he had mistaken the date of hearing to be 9th December 1982 instead of 9th November 1982. Shri R.C. Yaduvanshi, who had by then succeeded Shri K.C. Lohia, allowed the said application and restored the complaint to its original position. Feeling aggrieved by the said order the accused persons filed revision petition being Criminal Revision No. 81/83 in the Court of Session. It was heard by an Additional Sessions Judge, who vide order dated 8th August 1984 has made this reference for opinion of this Court on the aforesaid question of law. The learned Additional Sessions Judge noticed that there was a conflict of judicial opinion on the point in issue, in that some of the Judges of this Court took the view that a subordinate criminal court is competent to restore a complaint dismissed in default whereas some other Judges took the contrary view holding that in a situation like this the Magistrate dismissing the complaint becomes functus officio and in the absence of any specific provision enabling him to restore the complaint to its original position the prohibition contained in Section 362 of the Code would operate and preclude the Magistrate from reviving the complaint. He noticed that the conflict of opinion had become all the more irreconcilable subsequent to the decision of the Supreme Court in Bindeshwari Prasad v. Kali Singh Section 362 of the Code which corresponds to Section 369 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the old Code) reads as under: Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final, order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.