Research › Search › Judgment

Karnataka High Court · body

2004 DIGILAW 242 (KAR)

H. RAGHAVENDRA RAO v. BUCKEYE CORPORATION (I) LTD

2004-03-27

H.G.RAMESH

body2004
H. G. RAMESH, J. ( 1 ) THIS revision is filed by the petitioner/accused under S. 397, Cr. P. C. being aggrieved by the order passed by the learned Magistrate in recalling the order of dismissal of the complaint and discharge of the accused which was passed on 25-9-2000. ( 2 ) THE brief facts leading to this revision are that a private complaint has been filed against the petitioner before the IV Addl. Chief Metropolitan Magistrate, Bangalore, which was registered in C. C. 8351/98 (PCR 327/98) on 21-9-1998 for the alleged offences under Sections 406, 423, 420 and 506 of IPC. After perusal of the complaint and on the submission of the counsel for the complainant, the Magistrate directed the officer to register the case as a PCR and post the matter for orders on 6-10-1998 by his order dated 24-9-1998. Later by order dated 28-7-1999 the IV ACMM directed to register the case for offences punishable under ss. 420, 423 and 506, IPC, and posted for evidence before charge. However, it is seen that as per the copy of the order sheet produced on 25-9-2000 the matter was taken up by the Court wherein it is noted that the complainant and his counsel were absent; stating that the presence of the complainant was required for recording his evidence and since the complainant was not present, the Court dismissed the complaint and discharged the accused under Section 245, cr. P. C. However, on the very same day, i. e. on 25-9-2000 the complainant is shown to have filed an application under S. 309, cr. P. C. along with an affidavit and a memo to restore the complaint on file and recall the order discharging the accused. The Magistrate after hearing the counsel for the complainant as well as the counsel for the accused assigning reasons stating that the counsel for the complainant filed an application and a memo immediately after the orders on the very same day and that the accused was also present on the date of dismissal order. The complainant filed the application and memo at 1. 05 pm. whereas the case was called around 11. 45 a. m. Therefore, the Court opined that the complainant was not negligent in prosecuting the case and has recalled the order. The said order is assailed in this revision by the accused on various grounds. The complainant filed the application and memo at 1. 05 pm. whereas the case was called around 11. 45 a. m. Therefore, the Court opined that the complainant was not negligent in prosecuting the case and has recalled the order. The said order is assailed in this revision by the accused on various grounds. ( 3 ) I have heard the learned counsel appearing for the respective parties. ( 4 ) THE submission of the learned counsel for the petitioner is that the Magistrate has no inherent power to recall the order passed by him unlike the one to be interfered by the Civil Court exercising power under S. 245, Cr. P. C. At the most, that order would have been set aside in revision before the Sessions Judge or before this court. Accordingly, he contended that the impugned order passed by the Magistrate is not in accordance with law. ( 5 ) THE learned counsel appearing for the respondent has submitted that there is no error as such committed by the respondent and the respondent being the complainant was very much present in the Court and the matter has been called out of turn and that it is the Magistrate who has committed the error and the order of recalling by assigning the reasons is justifiable and submitted that there is no irregularity in the order and he has rightly set aside his earlier order. Accordingly, he has prayed for dismissal of the revision. ( 6 ) IN view of the submissions made, the point that arises for consideration is whether any illegality or irregularity has been committed by the Magistrate and whether the impugned order calls for interference. ( 7 ) AT the outset, the learned counsel appearing for the petitioner cited a ruling reported in 1986 Cri LJ 1074 : ( AIR 1986 sc 1440 ) Maj. General A. S. Gauraya v. S. N thakur wherein it is held thus :"so far as the accused is concerned, dismissal of a complainant 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, to restore the case. A second complainant is permissible in law if it could be brought within the limitation imposed by the Supreme Court in Pramatha nath Talukdar v. Saroj Ranj an Sarkar, AIR 1962 SC 876 : (1962 (1) Cri LJ 770 ). Filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The criminal P. C. does not contain any provision enabling the criminal Court to exercise such an inherent power. Also, what the court has to see is not whether the Code 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. (1971) 7 Delhi lt 162, Overruled. Delhi High Court's decision dated 9-8-1978. Reversed, AIR 1977 SC 2432 : (1978 Cri LJ 187), Applied. (Paras 9,10 ). "a reading of the above ratio makes it clear that the Magistrate has no Jurisdiction to recall the order of dismissal of the complaint. The remedy open to the respondent was to move the Sessions Court or the High Court as' the case may be in revision after the order of dismissal once passed. Under the circumstances, the only remedy provided as laid down in the ratio in the above cited decision, is to file a second complainant as it is permissible. Under what circumstances second complaint is permissible has been explained in the ruling reported in AIR 1962 sc 876 : (1962 (1) Cri LJ 770), Pramatha nath Talukdar v. Saroj Ranjan Sarkar. Here it is useful to quote the relevant para 48 for the purpose of clarification : the scope of enquiry under S. 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and S. 203 lays down what materials are to be considered for the purpose. Under S. 203 the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding. Under S. 203 the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding. Therefore, if he has not misdirected himself as to the scope of the enquiry made under S. 202 and has judicially applied his mind to the material before him and then proceeds to make his order, it cannot be said that he has acted erroneously, AIR 1960 SC 1113 : (1960 Cri lj 1499), Rel. on. An order of dismissal under S. 203, cr. P. C. Is however, 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 in 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. It cannot be said to be in the interest of Justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other persons should be given another opportunity to have his complaint enquired Into. " in the instant case, the impugned order is regarding dismissal and discharge of the accused and now since It is held that the magistrate could not exercise power of recalling his own order as there is no enabling provision, the only remedy for the complainant was to approach in revision the Sessions court of the High Court. Instead of that, an application was filed before the Magistrate on the very Same day. Under a bona fide impression the Magistrate has also entertained it. In the factual circumstances of the case, having felt that the matter requires to be disposed of on merits he has recalled the order of dismissal as also the order discharging the accused and restored the matter on board. In view of the above ratio, though it refers to the dealing of the complaint under ss. In the factual circumstances of the case, having felt that the matter requires to be disposed of on merits he has recalled the order of dismissal as also the order discharging the accused and restored the matter on board. In view of the above ratio, though it refers to the dealing of the complaint under ss. 202 and 203, here Is a case where the dismissal is for non prosecution which order was subsequently recalled. When it is clear that the order of the Magistrate was not maintainable , the only remedy open to the complainant was to file a second complaint. From the above it is clear that the complaint is shown to have not been disposed of by the Magistrate on merits but rather on technicalities. So it requires further inquiry understanding and application of mind and then to be acted upon. It is not as if the complaint has been dealt with by the Magistrate at the threshold and decision was given and the complaint was dismissed, whereas, the Magistrate has dismissed the case for default. In my view of the above ratio applies to the case on hand and that a second complaint can be maintained in the facts circumstances of the case. ( 8 ) IN AIR 1977 SC 2432 : (1978 Cri LJ 187), Bindeshwari Prasad Singh v. Kali singh , it is held thus :"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. " ( 9 ) IN view of the above discussion this court has to inevitably allow the petition by setting aside the order of the Magistrate which was exercise by him without any power or jurisdiction. Accordingly, the petition is allowed. The impugned order passed by the Magistrate in recalling the order of discharge and dismissing the complaint by his order dated 2-12-2000 is set aside. It is made clear as mentioned above, the complainant can proceed in accordance with law, in view of the ratio laid down in AIR 1962 SC 876 : (1962 (1) Cri LJ 770) (supra), by filing a second complaint. Petition allowed. --- *** --- .