DAYA KISHAN Vs. BANARSI DASS

JUDGEMENT

(1.) Prayer in the present petition is for quashing of the order dated 13.12.2004 (Annexure P-2) passed by the Additional Chief Judicial Magistrate, Ludhiana vide which the complaint which was dismissed in default for want of prosecution vide order dated 15.7.2004 (Annexure P-1) stands restored and for quashing of all subsequent proceedings arising therefrom i.e. summoning order dated 16.1.2007 (Annexure P-3) and further quashing of the complaint Annexure P-4.

(2.) Counsel for the petitioners contends that a criminal complaint preferred by a private person once dismissed for non-prosecution on account of his non- appearance amounts to passing of a final order which cannot be recalled or reviewed by the Magistrate. The said order can only be challenged by the complainant in accordance with law before a superior Court and it is only the superior Court which can, for the reasons which are justified and specified by the requirement of law, set aside such an order. He submits that the subordinate criminal Court does not have any inherent jurisdiction as is available under Section 482 Cr.P.C. in the High Court and there being no provision under the Code of Criminal Procedure which would give powers to a Magistrate to recall or review an order passed by him, order dated 13.12.2004 (Annexure P-2) passed by the Additional Chief Judicial Magistrate, Ludhiana, cannot be sustained. In support of this proposition, counsel for the petitioners has relied upon the judgments of the Hon'ble Supreme Court in the case of Bindeshwari Prasad Singh v. Kali Singh, 1977 AIR(SC) 2432, Major General A.S.Gauraya v. S.N.Thakur, 1988 1 RCR(Cri) 3.

(3.) On the other hand, counsel for the respondent contends that in the present case, complaint was preferred by the respondent against the petitioners. Before the issuance of summons, respondent No. 1-complainant could not appear before the Court on 15.7.2004 being unwell. The case was fixed for pre- summoning evidence of the complainant and, therefore, no prejudice was caused to the petitioners by restoration of the case. He contends that at the stage when the case was dismissed for non-prosecution and was subsequently restored, it was between the Magistrate and the complainant alone as the petitioners had yet not been summoned in the case. The Magistrate having been satisfied with the reasons given by the complainant for non-appearance on the date fixed, restored the complaint and proceeded to further take pre-summoning evidence of the complainant. He further contends that the Magistrate has not considered the complaint on merits nor has he dismissed the complaint on consideration of the matter and had merely proceeded to dismiss the complaint for non- prosecution due to non-appearance of the complainant. The question of discharge of the accused and the applicability of Section 242 Cr.P.C., does not come into picture as the accused-petitioners were not discharged by the Court. It is only in case of discharge of the accused that the Magistrate cannot recall the order of dismissal of the complaint. Even otherwise, the order dated 15.7.2004 was an interim order and not a final judgment and, therefore, the same could be recalled by the Magistrate. In support of his contention, counsel for the respondent has relied upon the judgments of this Court in the cases of Suresh Kumar and others v. Railway Protection Force and others, 2004 3 RCR(Cri) 917, Smt. Kamla Devi and others v. Mehma Singh, 1989 1 RCR(Cri) 476 and a Division Bench judgment of the Delhi High Court in the case of Shiv Kumar v. Mohd. Saghir, 1997 1 RCR(Cri) 709.