KASHMIR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) JAGRUP Singh, respondent No. 2 got recorded against the petitioners a First Information Report under Sections 452/380/324/325/148/149 of the Indian Penal Code in respect of the occurrence dated 13th Feb., 1988 on 14th February, 1989 the following day. After investigation the police reported the matter as untraced on 5th July, 1989 and initiated action against respondent No. 2 under Sections 182 and 211 of the Indian Penal Code. On 10th October, 1988 respondent No. 2 filed a criminal complaint of the same occurrence dated 13th February, 1988 aforesaid in the court of learned Judicial Magistrate 1st Class, Muktsar, which was dismissed in default for non-appearance of the complainant on 1st July, 1989. On the application of the complainant (respondent No. 2.) dated 4th July, 1989, the complaint dismissed in default on 1st July, 1989 was restored by the learned Judicial Magistrate 1st Class, Muktsar, on 10th July, 1989. After recording .the premliminary evidence petitioners have been summoned as accused therein vide impugned order dated 26th April, 1990 of the learned trial court for 21st May, 1990. Criminal Misc. No. 7039-M of 1990 has been filed by all the four respondents in the complaint for quashing the summoning order dated 26th April, 1990.

(2.) IN reply it was asserted that the police having not taken any action against, the petitioners named as accused in the First Information Report, respondent No. 2 had no other alternative except to approach the criminal court of competent jurisdiction for seeking justice and that the impugned order dated 26.4.1990 was based on cogent convincing and reliable evidence adduced by respondent No 2 before the learned trial court. Hence the quashing petition merits rejection. Restoration of original complaint dated 10th October, 1988 vide order dated 10th July, 1989 made on the application moved by respondent No. 2 before the learned trial court on 4th July, 1989 was, however, not disputed in the reply obtaining in para 3.

(3.) THE short point for consideration before this Court is, could the complaint dated 10th October, 1988 which was dismissed for non appearance of the complainant on 1st July, 1989 be restored on 1st July, 1989 on the application filed by complainant (respondent No. 2 before this Court) for this purpose on 4th July, 1989. Delhi High Court in V. Venugopal v. State and another, 1987(2) Recent Criminal Report 173 : 1987 Chandigarh Criminal Cases 345 and this Court in Major Jagir Singh v. Chhabila, 1988(2) Recent Criminal Reports 362 : 1988 Chandigarh Criminal Cases 478 have repeatedly held that the Magistrate had no jurisdiction to recall or review his order of dismissing the complaint for non-appearance of the complainant.