Chandigarh, May 10, 2022: The Punjab and Haryana High Court has recently held that there is no provision in the Code of Criminal Procedure, 1973 vesting in the magistrate inherent jurisdiction or giving the magistrate the power to review/recall a final order.
It was also held by the Court that even the provisions under Section 362 of the Cr.P.C. would bar the magistrate from recalling/reviewing such an order as an order vide which a petition or a complaint has been dismissed in default, cannot be stated to be a case of a clerical or arithmetical error in the order.
The Bench of Justice Vikas Bahl was further asserted, “The order vide which a case has been dismissed in default, whether on the ground of the copy of the complaint having not been supplied or for want of prosecution, would be a final order and thus, no application for reviewing or recalling of the said order would be maintainable.”
In this present case, a complaint was filed by the State of Punjab through Insecticide Inspector and the petitioners were arrayed as accused (seventh and eighth) in the said complaint. This complaint was dismissed in default as the complainant failed to file a copy of the complaint. Also dismissed in default was an application filed for restoration of the above-said complaint.
A reply was filed to the said application by the fifth and sixth respondents in which, it was specifically pointed out that there was no provision in the Cr.P.C. to restore the criminal complaint and a specific objection was taken that the Court had no power to review its own order and thus, the application deserved to be dismissed. The Trial Court allowed the said application and restored the complaint to its original number and issued notice to the remaining accused.
Hence, the present petition under Section 482 Cr.P.C. for quashing a complaint under Sections 3(K)(i), 17, 18, 29 and 33 of the Insecticides Act, 1968 read with Rule 27(5) of the Insecticides Rules, 1971, was filed. The petition also sought to quash the order of the Trial Court to restore the complaint.
The Counsel for the petitioner submitted that said order was absolutely illegal and against law, inasmuch as, the Judicial Magistrate 1st Class, did not have any power to review the order. The Counsel also submitted that the reliance placed by the Trial Court upon the judgment of the Supreme Court in Chandan Singh Vs. National Insurance Co. Ltd. & Anr. was completely misplaced, inasmuch as, the said case was a case under the Consumer Protection Act, 1986 and not the Code of Criminal Procedure.
Vouching for the validity of the impugned order of restoration, the State Counsel argued that the case was dismissed in default on account of the fact that a copy of the complaint had not been filed, thus, the order restoring the said complaint was rightly passed, in accordance with the law.
On the law governing this issue, the Court made reference to the case of Daya Kishan Vs. Banarsi Dass, wherein it was observed that once a case has been dismissed in default by an order passed by the Magistrate, the magistrate can not review the same, as he does not have the inherent jurisdiction in the said respect. It was further observed that the dismissal of the complaint, whether it was on account of default or due to want of prosecution, cannot be termed as an interim order and it is a final order, thus, the said order can not be modified, changed or recalled by the Magistrate. Also, it was opined that the said order dismissing the complaint in default could only be modified or set aside by a superior court in accordance with law and the other option available to the complainant is to prefer another complaint on the same facts if permissible under the law.
Also, while referring to the law laid down by the Top Court in Hari Singh Mann Vs. Harbhajan Singh Bajwa, the High Court opined that once a case has been finally decided by a magistrate, then, the said Court become functus officio and has no power to review or recall the said order on any ground whatsoever.
Further, Justice Bahl expounded that there was no provision in the Cr.P.C. vesting in the magistrate with inherent jurisdiction or giving the magistrate the power to review/recall a final order. Even the provisions under Section 362 of the Cr.P.C. would bar the magistrate from recalling/reviewing such an order as an order vide which a petition or a complaint has been dismissed in default, cannot be stated to be a case of a clerical or arithmetical error in the order, the Court opined.
Regarding the reliance placed by the Trial Court upon Chandan Singh (Supra), the Court was in agreement with the contention of the counsel for the petitioner.
Keeping in view the above-said facts and circumstances as well as the settled principle of law, the present petition was allowed and the impugned order was set aside.