SANJEEV Vs. RAJINDER PARSHAD

JUDGEMENT

(1.) The petitioners seek the quashing of the complaint No.131-C dated 5-8-1989, under Sections 323, 506, 148 and 149 of the Indian Penal Code and Section 25 of the Arms Act, filed by Rajinder Parshad respondent against them and Bilu, in the Court of the Chief Judicial Magistrate, Hissar and the orders of the Sessions Judge, Hissar dated 21-5-1990 and all the consequent proceedings.

(2.) I need not give the details of the allegations made in the complaint, as the matter is to be decided on a legal issue. The complaint of the respondent was pending in the Court of the Chief Judicial Magistrate, Hissar and fixed for 10-8-1989 for remaining preliminary evidence: On that date, none being present, it was dismissed in default. An application was then moved by the respondent and vide another order of the same date, the complaint was restored and the case was fixed for remaining preliminary evidence for 16-8-1989. After recording preliminary evidence, the Chief Judicial Magistrate summoned only Bilu to stand trial under section 323, I.P.C. This did not satisfy the respondent and he preferred a revision which was accepted by the learned Sessions Judge, Hissar vide order dated 21-5-1990, holding that a prima facie case was made out and he ordered the summoning of all the petitioners,

(3.) Learned counsel for the petitioners has urged that after the complaint was dismissed, vide order dated 10-8-1989, the Chief Judicial Magistrate had no power under the Criminal Procedure Code to recall his order and proceed with the complaint. All the subsequent proceedings taken by him are without jurisdiction. In support of his contention, he relied upon two judgments of the Supreme Court reported as Bindeshwari Prasad Singh v. Kali Singh, and Maj. GenI. A.S. Gauraya & Anr. v. S.N. Thakur & Another,. The ratio of the two judgments is that the Magistrate has no inherent power under the Criminal Procedure Code to recall the order and once a complaint is dismissed in default, he cannot recall that order and proceed with the same. I accept the argument that the present case is covered by the observations of their Lordships in the above two cases. I hereby accept the petition and quash the order of the Chief Judicial Magistrate dated 10-9-1989, summoning Bilu and the order of the Sessions Judge dated 21-5-1990, summoning all the petitioners. The complaint proceedings shall stand dropped in toto. Petition allowed.