Case Laws: Can a complaint be restored by judicial magistrate on the application by complainant, after it got dismissed in default for non-appearance of the complainant?

The following are the case laws on this query:

1.SHRI C.K. BALJEE v. STATE OF RAJASTHAN THROUGH P.P.¹

(High Court Of Rajasthan, Jaipur Bench) | 09-02-2017

In this case, Petitioner filed this petition under Section 482 Code of Criminal Procedure, 1973 challenging the order dated 15.03.2016 whereby the complaint filed by respondent No. 2 under Section 138 of the Negotiable Instruments Act, 1881 was ordered to be restored.

Learned counsel for petitioner opposed the lower court decision by citing two case laws as follows:-

“3. Learned counsel has placed reliance on the decision of Honble Supreme Court in Maj. Genl. A.S. Gauraya and another v. S.N. Thakur and another, wherein it was held as under:-

“We would like to point out that this approach is wrong. What the Court has to see is not whether the Code of Criminal procedure contains any provision prohibiting a Magistrate from entertaining an application to restore a dismissed complaint, but the task should be to find out whether the said Code contains any provision enabling a Magistrate to exercise an inherent jurisdiction which he otherwise does not have. It was relying upon this decision that the Delhi High Court in this case directed the Magistrate to re-call the order of dismissal of the complaint. The Delhi High Court referred to various decisions dealing with section 367 (old code) of the Criminal Procedure Code as to what should be the contents of a Judgment. In our view, the entire discussion is misplaced. So far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction.”

4. Learned counsel has next placed reliance 2009 SCC Online P & H 4894, Krishan Lal v. Sangeeta Aggarwal, wherein it was held as under.

¹ https://www.legitquest.com/case/shri-ck-baljee-v-state-of-rajasthan-through-pp/19E50F

“I have heard learned counsel for the parties and perused the order dated 23.10.2006, whereby the Chief Judicial Magistrate recalled his order dated 16.12.2005 and restored the complaint to its original stage. The Code of Criminal Procedure does not confer any power to review/recall an order. The only situation, in which a court may legitimately alter its order is, where it proposes to correct clerical and/or arithmetical errors. A complaint, once dismissed for failure of the complainant to put in appearance, therefore, cannot be restored. The question, whether the Magistrate was empowered to dismiss the complaint in default for non- appearance, is a matter apart and can be legitimately agitated in appropriate proceedings. It is, therefore, apparent that the learned Chief Judicial Magistrate had no jurisdiction to pass the order dated 23.10.2006.”

Court made the following observations:-

“8. In the present case, complaint was filed by respondent No. 2 against the petitioner and others under Section 138 of the Act. On 04.03.2015 the complaint filed by the petitioner was dismissed for want of prosecution. A perusal of the order reveals that for the last three dates complainant had not been appearing, nor the counsel for the complainant had appeared. Necessary fee for summoning the respondent had also not been deposited. In these circumstances, left with no option learned trial Court dismissed the complaint for want of prosecution. It is settled law that the Magistrate has no power to restore the complaint. In the absence of any specific provision in the code, a Magistrate can not exercise any inherent jurisdiction. The judgments relied upon by the learned counsel for the respondent No. 2 fail to advance the case of the complainant as they were based on their own facts. In the decision given by the Honble Apex Court in Mohd. Azeem case supra, Honble Apex Court was dealing with an order passed by the High Court in an appeal.”

2. Martin v. Khileshwar Prasad²

(High Court Of Chhattisgarh)| 06-12-2013

In this case, learned counsel for the applicant submitted that the Court below ought not to have dismissed the complaint in absence of the complainant and by dismissing the complaint

² https://www.legitquest.com/case/martin-v-khileshwar-prasad/F5860

instead of adjourning the same, the trial Court has committed illegality. Reliance was placed on the matter of Smt. R. Rajeshwari v. H.N. Jagdish II (2002) BC 89 in which the High Court of Karnataka has held that complaint dismissed for want of prosecution may be restored in exercise of inherent jurisdiction under Section 482 of Cr.P.C.

To which High court of Chhattisgarh observed as follows:- “5. Section 256 of Cr.P.C. reads thus;- —

“256. Non-appearance or death of complainant. –

(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.”

6. Effect of dismissal of any summon trial in terms of Section 256 of Cr.P.C. would be of acquittal. In the matter of Maj. Genl. A.S. Gauraya & another v. S.N. Thakur & another the Supreme Court while dealing with the question of restoration of dismissed complaint and acquittal of the accused on the ground of non-appearance of the complainant has held that” the Magistrate has no jurisdiction to restore or revive the dismissed complaint on a subsequent application of the complainant. The Code does not permit a Magistrate to exercise an inherent jurisdiction which he otherwise does not have

7. In the light of effect of dismissal of complaint in summon trial cases the remedy to file leave to appeal and appeal under Section 378 (4) of Cr.P.C. is available to the complainant. This is not the case where the applicant is remediless.

8. In these circumstances, in the light of dictum of the Supreme Court in Maj. Gen I. A.S. Gauraya (1986) 2 SCC 709 and availability of remedy under the law, I am unable to accept the view taken by the High Court of Karnataka in Smt. R. Rajeshwari1.”

3. SANTOSH KUMAR KEYAL v. DURGA DUTTA BISWANATH (M/S.) AND OTHERS³

(High Court Of Gauhati) | 20-07-2013

In this case, Mr. P.K. Sharma, learned Counsel, appearing for the respondents, referring to the decision, held in the case of Mohd. Azeem (supra), submitted that in view of the judgment and order, passed by the Supreme Court, in the said case, the learned SDJM committed no error by setting aside the order of dismissal of the complaint and restoring the same to file. It is also submitted that, as there is no provision of filing of second complaint, the respondent i.e. the complainant, had no other alternative but to approach the trial Court for restoration of the complaint to file and as such, the learned SDJM rightly restored the complaint to file.

However court refuted the same by stating that Supreme Court, while observing that the learned Magistrate committed error in acquitting the accused for absence of the complainant only on one day, indicated that the learned Magistrate committed error by dismissing the complaint for absence of the complainant on one day only and that High Court committed error by refusing to restore the complaint. As revealed from the facts, indicated in the said case, no petition for restoration of the complaint was preferred before the learned Magistrate. The complainant, against the order of dismissal of the complaint and the acquittal of the accused, preferred an appeal before the High Court. As no application for restoration was filed before the Magistrate, there was no question of restoration of the complaint by the learned Magistrate.

Further observations of the court are as follows:-

³ https://www.legitquest.com/case/santosh-kumar-keyal-v-durga-dutta-biswanath-ms-and-others/1B6FFC

“5. Law is well settled that a Judicial Magistrate, who passes an order u/s 256 Cr.P.C., resulting the acquittal of the accused person, has no jurisdiction to review his own order, inasmuch as after passing the order of dismissal, he ceases to have jurisdiction over the matter.

6. In the case of Maj. Genl. A.S. Gauraya (supra), the Supreme Court, referring to the observation, made in the case of Bindeshwari Prasad Singh Vs. Kali Singh, recorded the following observation made in the said case.

Even if the magistrate had any jurisdiction to recall this order, it could have been done by another judicial order after giving reasons that he was satisfied that a case was made out for recalling the order. We, however, need not dilate on this point because there is absolutely no provision in the Code of Criminal Procedure of 1898 (which applies to this case) empowering a magistrate to review or recall an order passed by him. Code of Criminal Procedure does not contain a provision for inherent powers, namely, Section 561-A which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 of Civil Procedure Code, the subordinate criminal courts have no inherent powers. In these circumstances, therefore, the learned magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. The remedy of the respondent was to move the Sessions Judge or the High court in revision. In fact, after having passed the order dated November 23, 1968, the Sub-divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever. In these circumstances, therefore, the order even if there be one, recalling order dismissing the complaint, was entirely without jurisdiction. This being the position, all subsequent proceedings following upon recalling the said order, would fall to the ground including order dated May 3, 1972, summoning the accused which must also be treated to be a nullity and destitute of any legal effect. The High Court has not at all considered this important aspect of the matter which alone was sufficient to put an end to these proceedings. It was suggested by Mr. D. Goburdhan that the application given by him for recalling the order of dismissal of the complaint would amount to a fresh complaint. We are, however, unable to agree with this contention because mere was no fresh complaint and it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out. This has been held by this Court in Pramatha Nath Taluqdar V. Saroj Ranjan Sarkar. For these reasons, therefore, the appeal is allowed.

The order of the High court maintaining the order of the magistrate dated May 3, 1972 is set aside and the order of the magistrate dated May 3, 1972 summoning the appellant is hereby quashed.
7. As held by the Supreme Court, so far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in absence of any specific provision in the code, the Magistrate can not exercise any inherent jurisdiction. The inherent jurisdiction, provided by Section 482 Cr.P.C., can be exercised by the High Court to prevent abuse of the process of any Court or to secure ends of justice. The revisional power is vested with the Sessions Judge or the High Court and the code i.e. the statute has not provided any inherent jurisdiction or power on the Magistrate to review his own order.”