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2016 DIGILAW 270 (ALL)

GANGA SINGH v. STATE OF U. P.

2016-01-20

VINOD KUMAR MISRA

body2016
JUDGMENT Hon’ble Vinod Kumar Misra, J.—This revision has been preferred against the judgment and order dated 18.7.2012 passed by Special Judge (SC/ST) Siddharthnagar in Criminal Revision No. 18 of 2011 (RamKamal Singh and another v. State of U.P. and others) under Section 133 Cr.P.C. whereby and whereunder learned Sessions Judge set aside the order dated 4.12.2010 passed by S.D.M. Naugarh. 2. Heard learned counsel for the revisionist, learned A.G.A. And learned counsel for the respondent Nos. 2 and 3. 3. It transpires from the impugned judgment dated 18.7.2012 passed by Special Judge (SC/ST) Siddharthnagar that learned Judge has allowed the Criminal Revision No. 18/2011 and has set aside the order dated 4.12. 2010 passed by learned S.D.M. Naugarh in Case No. 55 of 2009 (State v. Ram Akbal Singh and others). On 4.12.2010 learned S.D.M., Naugarh has passed the order to the effect that conditional order dated 6.4.1996 was issued at the report of SHO on the application of Ram Akbal Singh and others. The case was to be decided on merit but on 16.6.2009 the case has been dismissed in default. Against order dated 16.6.2009 Baburam moved an application on the same date mentioning the fact that as he went to call his counsel, some delay took place in the arrival of the counsel in the Court and in the meanwhile, case has been dismissed in default. He prayed that case be restored for deciding it on merits. Learned S.D.M. after hearing both the sides and mentioning this fact that on that date second party Ram Kamal Singh and others was also absent and this case is quite old, it should be decided on merits. So he allowed the application of Babu Ram imposing cost of Rs. 100/- and recalled the order dated 16.6.2009 and fix 16.12.2010 for arguments. This order of learned S.D.M. was assailed by Ram Kamal Singh and Ram Nagina Singh before Special Judge (SC/ST) Siddharthnagar and learned Special Judge (SC/ST) has set asided the order dated 4.12.2010 passed by learned S.D.M. Learned Judge has mentioned in the judgment that learned Magistrate cannot recall its order, as the criminal Court does not have the jurisdiction and power to recall its order. 4. 4. Learned counsel for the revisionist submitted that the proceedings under Section 133 Cr.P.C. are of quasi civil nature and in support of his submission State of M.P. v. Kedia Leather & Liquor Ltd. and others, 2003 SCC (Cri) 1642 has been relied upon by the learned counsel for the revisionist. In this case law it has been observed by the Apex Court that proceedings under Section 133 and 144 Cr.P.C. are more in the nature of civil proceedings than criminal proceedings. Learned counsel for the revisionist submitted that Section 362 Cr.P.C. contemplates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. In the present matter, the order of learned S.D.M. dismissing the proceedings in default did not amount to judgment or final order, as no adjudication of merits has been made by hearing the both sides. 5. Learned counsel for the revisionist has also submitted that merely because Section 133 Cr.P.C. has been in the Criminal Procedure Code it cannot be presumed that proceedings under Section 133 Cr.P.C. are purely proceedings of criminal case just like as the trial of an accused. Cr.P.C. also contains provisions regarding the maintenance under Chapter IX but that does not mean that proceedings of different types of matter given in different Chapters just else like Chapter IX or Chapter X are purely criminal proceedings and the procedure mentioned for a criminal trial will also be observed in these proceedings. In Smt. Kusum Devi v. Ram Chandra Maurya and others, 2004 All CJ 108. 6. This Court held that an application under Section 125 Cr.P.C. dismissed in default would be restored and in this case it has also been held that if there is no specific provision and justice demands, there is inherent power of Court and case should be restored and justice could not be denied to the wife and children. 6. This Court held that an application under Section 125 Cr.P.C. dismissed in default would be restored and in this case it has also been held that if there is no specific provision and justice demands, there is inherent power of Court and case should be restored and justice could not be denied to the wife and children. In this case the Court also relied on Smt. Prema v. Sudhir Kumar Jain, 1980 Marriage LJ 17 and in which Delhi High Court held that such an order of dismissal did not amount to final order and the Magistrate had the jurisdiction to restore the stay application, which was dismissed in default and the provisions of Section 362 Cr.P.C. were not attracted, as the order of dismissal in default was not a final order. The proceedings of maintenance even though provided in the Cr.P.C. cannot be equated with the other proceedings under the Code of Criminal Procedure and husband cannot be treated as an offender. 7. Learned counsel for the respondent has relied on State of Kerala v. M.M. Manikantan Nair, 2001-Laws (SC)-4-101. In this case Hon’ble Supreme Court has propounded that criminal Court has no power to review its judgment. There is no quarrel with this propositions but in the present case learned S.D.M. did not review its order. He simply recalled its order and the order that was recalled does not come within the purview of judgment or final order as contemplated under Section 362 Cr.P.C. Furthermore, learned counsel for the respondent also relied on Maj. Gen. A.S. Gauraya and another v. S.N. Thakur and another, 1986 ACC 346. In this case Hon’ble Apex Court has laid down that the order of dismissal of a complaint of a criminal Court due to absence of a complaint is a proper order but the question remains whether the Magistrate can restore a complaint to his file by revoking earlier order dismissing it for non appearance of the complainant and proceed it when an application is made by the complainant to revive it. Second complaint permissible in law, if it should be brought in the limitation imposed by this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar. Filing of second complaint is not same-thing as reviving dismissed complaint after recalling the order of dismissal. Second complaint permissible in law, if it should be brought in the limitation imposed by this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar. Filing of second complaint is not same-thing as reviving dismissed complaint after recalling the order of dismissal. The Criminal Procedure Code does not contain any provisions enabling the criminal Court to exercise such inherent power. 8. The above case laws of Hon’ble Apex Court pertains to complaint filed for punishing the accused persons for the offences committed by them. The proceedings under Section 133 Cr.P.C. can be initiated by District Magistrate or by Sub Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of police officer or other information. So Magistrate is empowered to initiate the proceedings on receiving the report of a police officer or on other information. It is not necessary that proceedings can be initiated on the written report of an individual person, since Section 133 relates to public nuisance. A certain procedure has been made under Section 133 Cr.P.C. to 144 Cr.P.C. and Magistrate has to observe the procedure as contemplated under Section 133 Cr.P.C. to 144 Cr.P.C. Once the proceedings has been initiated then there is no provision in the Chapter X for dismissing the proceedings in default, when learned S.D.M. was apprised that he should have decided the matter on merits, he realized the mistake and recalled the order. Learned Sessions Judge passed the order on the premise that Cr.P.C. does not contain the provision for recalling the order and once an order has been passed then criminal Court cannot recall its order. No doubt in Cr.P.C. a detailed procedure for trial of criminal offences has been given but Chapter IX and Chapter X does not relate with the procedure of the criminal trial of offences but pertains to quasi civil proceedings, so the provisions of Cr.P.C. pertaining to the absence of complaint in the complaint case, for dismissal of complaint cannot be applicable, as the application or report moved before S.D.M. for initiating proceedings under Section 133 Cr.P.C. cannot be termed as a complaint and neither the opposite party be termed as an accused. So when the proceedings are of quasi civil nature and order is not final one passed on the merits then learned S.D.M. Was competent to recall its order to decide the matter on merits, as warranted under Section 133 to Section 144 Cr.P.C. So in these circumstances the order passed by learned Sessions Judge cannot be termed as a legal order, as it has interpreted the impugned order passed by learned S.D.M. as a final order. 9. Consequently, the impugned order dated 18.7.2012 passed by Special Judge is liable to be set aside and this revision is liable to be allowed. Hence impugned order dated 18.7.2012 is set asided. 10. The revision is, accordingly, allowed. 11. The parties are directed to appear before the learned S.D.M., Naugarh and learned S.D.M. is directed to proceed further in the matter in accordance with law. 12. Both the parties are directed to appear before the learned S.D.M., Naugarh on 14th March 2016. Copy of this judgment be transmitted to S.D.M., Naugarh by office within a week. ——————