R K GUPTA Vs. SANKAR MUKHERJEE

JUDGEMENT

(1.) Opposite party No.1, Sankar Mukherjee made a complaint against the petitioner before the learned Sub-divisional Judicial Magistrate, Alipore under S.500 I.P.C. on Oct. 5, 1978. On the said date the learned Magistrate examined the complainant and his two witnesses. Thereafter the case was adjourned to Oct. 7, 1978 for further hearing. On Oct. 7, 1978 the complainant was absent and the learned Magistrate dismissed the petition of complaint. Thereafter on the same date a petition was filed on behalf of the complainant for recalling the order of dismissal. The learned Magistrate after hearing the complainant recalled his earlier order of dismissal and restored the case. Subsequently, on Jan. 31, 1979 the learned Sub-divisional Judicial Magistrate took cognizance of the case under S.500 I.P.C. and issued summons against the petitioner. The petitioner who was the accused in the case appeared and challenged the maintainability of the case. In his application it was contended by the petitioner that as the petition of complaint was dismissed on Oct. 7, 1978 and no fresh or new complaint was filed thereafter and there was also no order from any higher court for any further enquiry, the continuation of the proceeding was illegal.

(2.) After hearing the parties the learned Judicial Magistrate, 4th Court, Alipore by order dt. Nov. 12, 1979 held that as the order for restoration was passed by the learned Sub-divisional Judicial Magistrate, he could not interfere with the said order of restoration. The illegality, if any, could have been challenged, before the higher court. The petitioner has challenged the orders dt. January 31,1979 and Nov. 12, 1979 in the present Rule.

(3.) Mr. Chakravorty, the learned Advocate and thereafter his learned Senior, Mr. Roy contended on behalf of the petitioner that the petition of complaint was dismissed on Oct. 7, 1978. The learned Magistrate had no jurisdiction to review or recall the said order of dismissal passed by him. The order summoning the accused is thus without jurisdiction and the proceeding against the petitioner cannot continue. In support of the contention the learned Advocate for the petitioner has referred to the case of Bindeswari Prosad Singh v. Kali Singh, AIR 1977 SC 2432 . It has been further contended that the learned Magistrate was thus wrong in holding that as the order recalling the dismissal was made by the learned Sub-divisional Judicial Magistrate, he had no authority to recall the same. It has been argued that the order of the learned Sub-divisional Judicial Magistrate summoning the accused is bad in law. The learned Magistrate had no jurisdiction to proceed with the case. In Bindeswari's case (supra) the complaint was dismissed on Nov. 23, 1968 under S.203 Cr.P.C. on the ground that the complainant was absent and did not show any interest in the enquiry ordered by the Court. Thereafter on Dec. 7, 1968 the order was recalled and after enquiry cognizance was taken and the accused was summoned by order dt. May 3, 1972. The Supreme Court held that the order dt. Nov. 23, 1968 was a judicial order by which the learned Magistrate had given full reasons for dismissing the complaint. There is absolutely no provision in the Cr.P.C. of 1898 empowering a Magistrate to review or recall an order passed by him. The Supreme Court thus held that the learned Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. After the order dt. Nov. 23, 1968 the Sub-divisional Officer was functus officio and had no power to recall or review the order. It has been further held by the Supreme Court that all subsequent proceedings would fall to the ground including the order dt. 3-5-1972 summoning the accused, which must also be treated to be a nullity and destitute of any legal effect. A second complaint can only lie on new facts or even on previous facts only if a special case is made out.