AJIT SINGH Vs. BIRENDER KAUR

JUDGEMENT

(1.) The petitioner along with seven others was summoned to face a trial under Section 494 read with Section 120 -B of the Indian Penal Code, on a complaint filed by his wife vide order dated 12.7.1985, passed by the Additional Chief Judicial Magistrate, Kurukshetra, he impugned this order through a revision petition before the Additional Sessions Judge, primarily on the ground that prior to the passing of the same, the trial Magistrate had dismissed the complaint for non appearance of the complainant on 22.10.1984 and thus the Court having become functus officio could not restore the same and could not proceed to deal with it in any manner, It is the undisputed position that this complaint had been dismissed for default or 22 -10 -1984, but on putting in appearance by the complainant, on the same very day, it was restored and was adjourned to 24.11.1984 for recording preliminary evidence of the complainant. As a result of the evidence led by the complainant under section 202 of the Code of Criminal Procedure, the Court passed the impugned order summoning the petitioner and his co -accused. It is again not in dispute that by 22 -10 -1984, when the complaint had been dismissed for default, no evidence, whatsoever had been recorded by the Court. In a nutshell, there was no material before the trial Magistrate to consider the merits of the case or the. complaint. The petitioner now impugn the order of the Additional Sessions Judge, dated 10 -3 -1987, dismissing his revision petition against the. order of the trial Magistrate dated 12 -7 -1965.

(2.) THE primary submission again is as it was before the Additional Sessions Judge that the order of restoration of the complaint passed by the. trial Magistrate on 22 -10 -1984, was totally without jurisdiction. The matters appears to be concluded by the authoritative pronouncement of their Lordships of the Supreme Court in Maj. Gen. A.S. Gauraya and another v. S.N. Thakur and another, 1988(1) R.C.R.(Criminal) 3 : AIR 1986 Supreme Court 1440, wherein it has been ruled in no uncertain terms that once a Magistrate dismisses a complaint for default, he becomes functus officio and has no jurisdiction whatsoever inherent or otherwise to restore that complaint. Even the argument that the application for restoration filed on behalf of the complainant may be treated as a fresh complaint was nullified by their Lordships. In the light of this conclusive pronouncement, the petition obviously has to be allowed and the order of the Magistrate summoning the petitioner and that of the Additional Sessions Judge have to be set aside. I, order accordingly. For clarity sake, it is mentioned here that this order would not, in any way, debar the complainant from filing a fresh complaints if permissible, in accordance with law.