when a complaint case is dismissed by the Magistrate for non-appearance of the complainant or his counsel and the accused is acquitted, then the Magistrate cannot exercise any inherent power to restore the case in the absence of any specific provisions in the Criminal Procedure Code. However, a second complaint case is permissible in law if it could be brought within the limitation.

PETITIONER:
MAJ. GENL. A.S. GAURAYA & ANR.

Vs.

RESPONDENT:
S.N. THAKUR AND ANR.

DATE OF JUDGMENT25/04/1986

BENCH:
KHALID, V. (J)
BENCH:
KHALID, V. (J)
DUTT, M.M. (J)

CITATION:
1986 AIR 1440 1986 SCR (2) 771
1986 SCC (2) 709 1986 SCALE (1)1128

ACT:
Criminal Procedure Code, 1973 – Whether subordinate
criminal Courts have inherent jurisdiction outside the
provisions of the Code.

HEADNOTE:
Respondent No.l, complainant, filed a complaint against
the appellants-accused in the Court of the Judicial
Magistrate, First Class, New Delhi disclosing an offence
punishable under s. 67 and 72-C(l)(a) of the Mines Act, 1952
read with Regulation 106 of the Metallifarous Mines
Regulation, 1961. The Magistrate took the complaint on file
and issued summons to the accused to appear on 6.1.1972. On
6.1.1972 neither the complainant nor the accused were
present and, therefore, the Magistrate dismissed the
complaint in default and for want of prosecution. The
respondent filed an application on 13.1.1972 for restoration
of the complaint and on 20.1.72, after hearing the
complainant, the Magistrate restored the complaint and
issued summons to the accused. Thereafter the accused-
appellants moved an application before the Magistrate
stating that the order dated 20.1.72 was without
jurisdiction since the Magistrate had become functus officio
by order dated 6.1.72. The Magistrate rejected this
application holding that he had inherent powers under the
code of Criminal Procedure to review and recall his earlier
orders. The Additional Chief Judicial Magistrate and the
Delhi High Court dismissed the first and the second revision
petition filed by the appellants against the order of the
Magistrate.
Pursuant to a judgement delivered by the Supreme Court
on 5th August, 1976 in the case of Bindeshwari Prasad Singh
v. Kali Singh, [1977] 1 S.C.R. 125 holding that no Criminal
Court had any inherent jurisdiction, not provided for in the
Criminal Procedure Code, the appellants moved an application
before the Metropolitan Magistrate contending that all
proceedings after the dismissal of the complaint by order
dated 6th January, 1972 were without jurisdiction in the
light
772
of the law laid down by the Supreme Court and requested the
Magistrate to drop further proceedings. The Magistrate
accepted this contention and dropped the proceedings against
the appellants-accused. Aggrieved by this order, the
respondent filed a revision before the Additional Sessions
Judge who reversed the decision of the Magistrate holding
that a pronouncement as to the position of law in a judicial
decision by the Supreme Court cannot be treated as a sort of
legislation by Parliament giving retrospective effect as to
enjoin re-appointing of all matters which have already
become final and closed. Thereupon, the appellants filed a
writ petition before the High Court and the same was
dismissed in limine. Hence this appeal by special leave.
Allowing the appeal.
^
HELD. 1. In view of the law laid down by Supreme Court
in Bindeshwari Prasad Singh v. Kali Singh, [1977] 1 S.C.R.
125, the order of the High Court is set aside and that of
the Magistrate dated 6.1.77 dismissing the complaint is
restored. [781 C]
2.(i) Section 249 of the Criminal Procedure Code
enables a magistrate to discharge the accused when the
complainant is absent and when the conditions laid down in
the said section are satisfied. Section 256(1) of the
Criminal Procedure Code enables a magistrate to acquit the
accused if the complainant does not appear. Thus, the order
of dismissal of a complaint by a criminal court due to the
absence of a complainant is a proper order. Therefore, 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. [776 E-F: 777 G-
H]
2.(ii) There is absolutely no provision in the Code of
Criminal Procedure of 1908 empowering a Magistrate to review
or recall an order passed by him. Code of Criminal Procedure
does 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 re-call
the order dismissing the complaint. [778 C-E]
773
2.(iii) Filing of a second complaint is not the same
thing as reviving a dismissed complaint after recalling the
order of dismissal. The Criminal Procedure Code does not
contain any provision enabling the Criminal Court to use
such an inherent power. A second complaint is permissible in
law if it could be brought within the limitations imposed by
the Supreme Court in Pramatha Nath Taluqdar v. Saroj Ranjan
Sarkar [1962] Suppl. 2 S.C.R. 297. [777 A-B; 776 H]
Bindeshwari Prasad Singh v. Kali Singh, [1977] 1 S.C.R.
125, followed.
B.D. Sethi v. V.P. Dewan, 1971 Delhi Law Times 162,
over-ruled.
3. A mere reading of Article 141 brings into sharp
focus its expanse and all pervasive nature. There is nothing
like any prospective operation alone of the law laid down by
the Supreme Court. The law laid down by the Supreme Court
applies to all pending proceedings. [780 D; 779 E]
Shenoy and Co. v. Commercial Tax Officer, [1985] 2
S.C.C. 512, relied upon.
In the instant case, the Additional Sessions Judge
overlooked the binding nature of the law declared by the
Supreme Court mandating under Art. 141, every court
subordinate to this Court to accept it. The High Court could
have, if it had examined the matter, corrected the error
into which the Sessions Judge fell. The observations of the
Sessions Judge disclose a confusion of thought about the
effect of decision rendered by the Supreme Court and a
misreading of Article 141 of the Constitution. [779 F-G;D-E]

JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
184 of 1979.
From the Judgment and Order dated the 9.8.78 of the
Delhi High Court in Criminal Misc. No. 391 of 1978.
Rajender Nath Sachar, D.N. Mishra, Ms. L. Goswami and
T.M. Ansari with him for the Petitioners.
774
V. Mahajan and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by
KHALID, J. This Criminal appeal by special leave,
involves the question :
Whether a Sub-ordinate Criminal Court has any
inherent jurisdiction outside the provisions of
the Criminal Procedure Code ?
Incidentally, the scope of Article 141 of the Constitution
also comes up for consideration.
The facts of the case can be stated first. The
appellants, two in number, are the accused in a complaint
filed by the first respondent in the Court of the Judicial
Magistrate, First Class, New Delhi, disclosing an offence
punishable under Section 67 and 72C(l)(a) of the Mines Act,
1952, read with Regulation 106 of the Metallifarous Mines
Regulation 1961. The learned Magistrate took the complaint
on file and issued summons to the accused to appear on
6.1.1972. On 6.1.1972 neither the complainant nor the
accused were present and therefore, the Magistrate passed
the following order :
“Accused not present. None present for the
complainant also. The complaint is hereby
dismissed in default and for want of prosecution.”
On 13.1.1972, the complainant filed an application for
restoration of the complaint. On 20.1.1972, the Magistrate
passed the following order :
“I heard Shri T.S. Sodhi. The complaint be
restored. Summon accused for 21/2.”
On 21.2.1972, the accused petitioners moved an application
before the Magistrate stating that the order dated 20.1.1972
was without jurisdiction since the Magistrate had become
functus officio, by his order dated 6.1.1972. This
application was rejected by the Magistrate by his order
dated 8.5.1972. He was of the view that he had inherent
powers under the Code of Criminal Procedure to review and
re-call his earlier orders.
775
Aggrieved by this order, the petitioners filed a A
revision before the Court of Additional Chief Judicial
Magistrate, New Delhi, which was dismissed on 6/7/1973.
This was followed by another revision before the High
Court of Delhi. The Delhi High Court dismissed the revision
by its order dated 10.1.1975, relying upon an earlier
decision of the same Court to the effect that a criminal
court had certain inherent powers, though not specifically
mentioned in the Code.
On 5.8.1976, this Court delivered its Judgment in the
case of Bindeshwari Prasad Singh v. Kali Singh, [1977]
S.C.R. 125 holding that no criminal court had any inherent
jurisdiction, not provided for in the Criminal Procedure
Code. The petitioners, armed with this decision, moved an
application before the Metropolitan Magistrate on
22.12.1976, contending that all proceedings, after the
dismissal of the complaint by order dated 6.1.1972, were
without jurisdiction in the light of the law laid down by
this Court and requested the Magistrate to drop fruther
proceedings. The learned Metropolitan Magistrate accepted
this contention and by his order dated 16.7.1977 dropped the
proceedings against the petitioners.
Aggrieved by this order, the respondents filed a
revision before the Sessions Judge, New Delhi. The
Additional Sessions Judge, New Delhi, to whom this case
stood transferred, reversed the decision of the Magistrate
by his order dated 7.1.1978 and held that : “so for as
Article 141 of the Constitution of India and the ratio of
these decisions is concerned, there can be no dispute
whatsoever. At the same time a pronouncement as to the
position of law in a judicial decision by the Supreme Court
cannot be treated as a sort of legislation by the Parliament
giving retrospective effect as to enjoin reopening of all
matters which have already become final and closed.”
Aggrieved by this order the petitioners moved the Delhi
High Court under Article 227 of the Constitution of India
read with Section 482 of the Code of Criminal Procedure, to
quash further proceedings, relying upon the decision of this
Court mentioned above and contending that the order of the
Sessions
776
Judge was wrong. This revision petition was dismissed in
limine by the High Court on 9.8.1978, observing :
“I find no sufficient reason to interfere with the
impugned order. Dismissed.”
It is against this order that this appeal has been filed.
The first question to be considered is whether the
Magistrate could have re-called his order. It cannot be
disputed that the Magistrate has powers to dismiss a
complaint and discharge the accused when the complainant is
absent. In Ram Prasad Maitra v. Emperor, 1928 A.I.R. – Cal.
569 a division bench of the Calcutta High Court had to
consider the question whether the Sessions judge was
justified in directing the complaint to be sent back to the
Magistrate for further enquiry when the complaint was
dismissed under section 203 of Criminal Procedure Code.
Answering the question in the negative, it was observed :
“…… In a case like this, where the complainant
does not choose to be present, he cannot be heard
afterwards to say that the matter should be sent
back to the Magistrate for further enquiry…”
This Judgment indirectly recognises the power in a
Magistrate to dismiss a complaint for default. We agree with
this conclusion.
Section 249 of the Criminal Procedure Code enables a
Magistrate to discharge the accused when the complainant is
absent and when the conditions laid down in the said section
are satisfied. Section 256(1) of the Criminal Procedure Code
enables a Magistrate to acquit the accused if the
complainant does not appear. Thus, the order of dismissal of
a complaint by a criminal court due to the absence of a
complainant is a proper order. But the question remains
whether a magistrate can restore a complaint to his file by
revoking his earlier order dismissing it for the non-
appearance of the complainant and proceed with it when an
application is made by the complainant to revive it. A
second complaint is permissible in law if it could be
brought within the limitations imposed by this Court in
Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, [1962]
777
Suppl. 2 S.C.R. 297. Filing of a second complaint is not the
A same thing as reviving a dismissed complaint after
recalling the earlier order of dismissal. The Criminal
Procedure Code does not contain any provision enabling the
criminal court to exercise such an inherent power.
In B.D. Sethi v. V.P. Dewan, 1971 Delhi Law Times 162 a
division bench of the Delhi High Court held that a
Magistrate could revive a dismissed complaint since the
order dismissing the complaint was not a Judgment or a final
order. In paragraph 9, the Court observes as follows :
“9. As long as the order of the Magistrate does
not amount to a Judgment or a final order there is
nothing in the Code of Criminal Procedure
prohibiting the Magistrate from entertaining a
fresh application asking for the same relief on
the same facts or from re-considering that order.
During the course of the proceedings, a Magistrate
has to pass various interlocutory orders and it
will not be correct to say that he has no
jurisdiction to re-consider them..”
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.
778
For our purpose, this matter is now concluded by a
judgment of this Court in the case of Bindeshwari Prasad
Singh v. Kali Singh, [1977] 1 S.C.R. 125. We may usefully
quote the following passage at page 126 :
“……. Even if the Magistrate had any
jurisdiction to re-call 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 re-calling the order. We, however, need
not dilate on this point because there is
absolutely no provision in the Code of Criminal
Procedure of 1908 (which applies to this case)
empowering a Magistrate to review or re-call an
order passed by him. Code of Criminal Procedure
does 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 re-call 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 23.11.1968,
the Sub-divisional magistrate became functus
officio and had no power to review or re-call that
order on any ground whatsoever. In these
circumstances, therefore, the order even if there
be one, re-calling order dismissing the complaint
was entirely without jurisdiction. This being the
position, all subsequent proceedings following
upon re-calling the said order, would fall to the
ground including order dated 3.5.1972, 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 re-calling the order
of dismissal of the complaint would amount to a
fresh complaint. We are,
779
however, unable to agree with this contention
because there was no fresh complaint and it is not
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 (supra). For these reasons,
therefore, the appeal is allowed. The order of the
High Court maintaining the order of the Magistrate
dated 3.5.1972 is set aside and the order of the
Magistrate dated 3.5.1972 summoning the appellant
is hereby quashed.
When the matter went before the High Court, the
decision of this Court referred above must have been brought
to its notice, since the order by the Additional Sessions
Judge refers to it. We would have happy if the High Court
had considered the matter in some detail especially when its
attention was drawn to this decision instead of dismissing
the revision in limine. The observations of the Sessions
Judge, extracted above, discloses a confusion of thought
about the effect of a decision rendered by this Count and a
misreading of Article 141 of the constitution. There is
nothing like any prospective operation alone of the law laid
down by this Court. The law laid down by this court applies
to all pending proceedings. If the Sessions Judge had
expressed his helplessness because of the earlier order of
the High Court binding on him and had allowed the revision
on that ground, we could have understood the reasoning
behind it. He got rid of the effect of this Court’s Judgment
by observing that a decision by this Court cannot be treated
as “a sort of legislation by Parliament” and thus overlooked
the binding nature of the law declared by this Court,
mandating under Article 141, every Courts subordinate to
this Court to accept it. The High Court could have if it had
examined the matter, corrected the error into which the
Sessions Judge fell.
The sweep of Article 141 of the Constitution, so far as
the Judgments of this Court are concerned, came up for
consideration before this Court recently in Shenoy and Co.
v. Commercial Tax Officer, [1985] (2) S.C.C. 512 to which
one of us was a party. It is not necessary to refer to the
facts of that case, in detail. Suffice it to say that the
contention
780
that the law laid down by this Court in an appeal filed by
the State would not bind the other parties against whom the
State of Karnataka did not file appeals from a common
Judgment, was repelled by this Court in the following words:
“….It is, therefore, idle to contend that the
law laid down by this Court in that Judgment would
bind only the Hansa Corporation and not the other
petitioners against whom the State of Karnataka
had not filed any appeal. To do so is to ignore
the binding nature of a judgment of this Court
under Article 141 of the Constitution. Article 141
reads as follows :
“The law declared by the Supreme Court shall be
binding on all courts within the territory of
India.” A mere reading of this article brings into
sharp focus its expanse and is all pervasive
nature. In cases like this, where numerous
petitions are disposed of by a common judgment and
only one appeal is filed, the parties to the
common judgment could very well have and should
have intervened and could have requested the Court
to hear them also. They cannot be heard to say
that the decision was taken by this Court behind
their back or profess ignorance of the fact that
an appeal had been filed by the State against the
common judgment….
To contend that this conclusion applies only to
the party before this Court is to destroy the
efficacy and integrity of the judgment and to make
the mandate of Article 141 illusory. But setting
aside the common judgment of the High Court, the
mandamus issued by the High Court is rendered
ineffective not only in one case but in all
cases.”
Normally, when several matters are disposed of by a common
Judgment, and the defeated party files only one appeal
against one such matter and succeeds in that matter, he
would still be faced with the plea of finality of the
Judgment based on res-judicata by those against whom appeals
were not filed. But this plea did not find favour with this
Court in the above
781
case. It was held that the Judgment rendered by this Court
in one appeal, took away the finality of the common Judgment
even against those against whom appeals were not filed
because of the all pervasive operation of Article 141.
We do not think it necessary to probe further into the
facts of this case and lengthen this Judgment, for one good
reason; this case has moved along the files of various
Courts for more than 15 years and it is high time that we
give it a decent burial. In view of the law laid down by
this Court in Bindeshwari Prasad Singh’s case (supra) we set
aside the order of the High Court, allow this appeal and
restore the order of the Magistrate, dated 6.1.1972
dismissing the complaint.
M.L.A. Appeal allowed.
782

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