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2004 DIGILAW 1035 (PAT)

Dur Vijay Kumar v. State Of Bihar

2004-09-27

RADHA MOHAN PRASAD

body2004
Judgment 1. In this miscellaneous application, prayer is for quashing the entire proceeding, including the order dated 19.1.2002, passed by the learned Judicial Magistrate, First Class, Patna in Complaint Case No. 1260 (C) 2000 taking cognizance of the offences under Sections 147, 323 and 363 IPC 2. In short, the relevant facts are that earlier on 19.12.1997 the complainant had lodged a case bearing Phulwari (Parsa Bazar) PS Case No. 505/97 against the petitioners under Sections 147, 148, 452,323, 307, 363 and 364 IPC. After investigation, the investigating officer submitted a final report on 25.8.1998, which was accepted by the Chief Judicial Magistrate. Thereafter opposite party No. 2 filed a protest petition, which was dismissed in default by the Chief Judicial Magistrate, Patna on 17.2.1999. Opposite party No. 2 having come to know about the said fact filed Misc. Petition No. 261 (M) 99 before the Chief Judicial Magistrate, Patna with a prayer to recall the said order dated 17.2.1999. The Chief Judicial Magistrate, vide order dated 19.3.1999. recalled the order dated 17.2.1999 and restored the complaint-cum-protest petition. Thereafter, on 17.4.1999, the CJM transferred the said complaint-cum-protest petition to the Court of the Judicial Magistrate, Patna to examine the complainant and the witnesses. After examination of the complainant and the witnesses the complaint case was dismissed on 21.9.1999. against which complainant-oppposite party came to this Court in Cr. Misc. No. 27164 of 1999. This Court, vide order dated 14.7.2000, in view of the law settled that the subordinate criminal Courts have no inherent powers to recall its orders and finding that since the complaint petition itself was dismissed on 17.2.1999, subsequent orders passed by the learned Magistrate was held to be wholly without jurisdiction. Thereafter, a fresh complaint petition was filed alleging the same offence, upon which the cognizance has been taken vide impugned order. 3. Learned counsel for the petitioners has contended that second complaint on same allegation is not maintainable more so because earlier complaint was, in fact, dismissed on merit after holding inquiry. In this regard learned counsel has relied upon the decisions of the Apex Court in the case of Pramatha Nath v. Saroj Ranjan, reported in AIR 1962 SC 876 and in the case of Jatinder Singh v. Ranjit Kaur, reported in AIR 2001 SC 784 . 4. In this regard learned counsel has relied upon the decisions of the Apex Court in the case of Pramatha Nath v. Saroj Ranjan, reported in AIR 1962 SC 876 and in the case of Jatinder Singh v. Ranjit Kaur, reported in AIR 2001 SC 784 . 4. In fail to appreciate as to how the decision in the case of Pramatha Nath (supra) is of any avail to the learned counsel for the petitioners. In fact, the Apex Court in the said case has held that an order of dismissal under Section 203, Cr PC is no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. 5. In the present case, the learned Magistrate accepted the final report without considering the protest petition, which was already on the record. However, later, vide order dated 17.2.1999, the said petition, which was numbered as Complaint-cum-Protest Petition No. 1353(C)98, was dismissed in default and later the said order of dismissal of complaint-cum-protest petition was recalled on filing of miscellaneous petition, vide order dated 19.3.1999. 6. This Court, in view of the law settled that the subordinate criminal Courts have no inherent powers to recall its orders and also the fact that the complaint petition itself was dismissed on 17.2.1999, held that the subsequent order passed by the learned Magistrate was wholly without jurisdiction. 7. The Apex Court in the case of Nawabkhan v. State of Gujarat, reported in AIR 1974 SC 1471 , dealing with the scope of void order and considering the fact that a fundamental right of the accused under Article 19 of the Constitution of India had been encroached upon by the Police Commissioner without due hearing and so held that the Court quashed it and not killed it then but performed the formal obsequies of the order which had died at birth. The legal result was that the accused was never guilty of flouting an order which never legally existed. The legal result was that the accused was never guilty of flouting an order which never legally existed. Applying the said principle, this Court finds that the subsequent orders, including the order dated 21.9.1999 dismissing the complaint-cum- protest petition, which were held to be wholly without jurisdiction, did not legally exist. Thus, in my opinion, the second complaint is not barred. 8. Learned counsel for the petitioner has not been able to show any error in the order taking cognizance. This Court, thus, does not find any merit in the miscellaneous application and it is, accordingly dismissed.