MAJOR JAGIR SINGH Vs. CHHABILA

JUDGEMENT

(1.) VIDE this order, Cr. R. 115 of 1987 and Crl. M. No. 694-M of 1987 are being disposed of together as the facts are common. One of the orders under challenge is the same. Facts are given from criminal miscellaneous petition filed under Section 482 of the Code of Criminal Procedure. Chhabila filed a criminal complaint under sections 420, 423, 467, 468, 471 and 506, Indian Penal Code, against Major Jagir Singh, the present petitioner. Copy of the complaint is Annexure P.l. Sarwan Singh and Rajinder sons of Chhabila owned 20 Kanals of land. On October 7, 1981, this land was got in exchange by the petitioner Major Jagir Singh. The petitioner was not owner of the land delivered in exchange since he had suffered a consent decree with respect to land measuring 111 Kanals 4 Marlas in favour of his daughter. In this way, it was alleged that Major Jagir Singh defrauded Chhabila.

(2.) THE Chief Judicial Magistrate, Hissar on the complaint passed an order, Annexure P. 2, on February 8, 1984 after preliminary evidence was recorded that Major Jagir Singh accused be summoned for March 19, 1984. This order was challenged in a revision petition before the Additional Sessions Judge. The order was set aside. The case was remanded to the trial Magistrate for deciding afresh by passing a speaking order copy of the order of the Additional Sessions Judge dated October 3, 1985 is Annexure P. 3. In the meantime on July 3, 1986, the complainant did not put in appearance before the Magistrate and the complaint was dismissed. Chhabila complainant filed an application for restoration of the complaint dismissed in default which was allowed by Additional Chief Judicial Magistrate vide order dated September 6, 1986, copy Annexure P. 4. On the same day, Additional Chief Judicial Magistrate passed a separate order on the complaint noticing that the complaint had been restored and that the accused be summoned for October 14, 1986, copy of this order is An-Annexure P. 5. Against this order, Criminal Revision No. 115 of 1987 has been filed in this Court on the solitary ground that the trial Magistrate did not apply his mind to the evidence produced in order to come to a conclusion that there were sufficient grounds for proceedings against the accused before summoning him. It was on this very ground that the Additional Sessions Judge had accepted the revision petition and remanded the case to the trial Magistrate. Criminal Miscellaneous Application No. 684-M of 1987 has been filed for quashing the proceedings on the ground inter alia that the trial Magistrate had no jurisdiction to recall the order dismissing the criminal complaint in the absence of the complainant vide order dated September 6, 198-5, copy Annexure P. 4, and subsequent proceedings taken on the criminal Complaint are also liable to be quashed on that ground.

(3.) LEARNED counsel for the petitioner has argued that dismissal of the complaint on account of the absence of the complainant could not be recalled by the Judicial Magistrate. In support of this contention, reliance has been placed on the decision of the Supreme court in Bindeshwari Prasad. Singh v. Kali Singh, AIR 1977 Supreme Court 2432.That was a case relating to a petty nature and trivial offence, notice of which could not be taken in view of section 95 of the Indian Penal Code, as observed by the Supreme Court. The only allegation was that the appellant had got a copy which was meant for the complainant by signing his name. The complainant had also got his own copy a few days later. The said complaint was dismissed on account of the absence of the complainant. In para 4 of the judgment, the Supreme Court observed that there was no provision in the Code of Criminal Procedure, 1898 (which applied to the case) empowering the Magistrate to review or recall an order passed by him. The Code of Criminal Procedure containing provision for inherent powers under section 561-A conferred powers on the High Court alone. Thus, it was held that the Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. The learned counsel for the respondent has sought to distinguish the above case on the ground that the present case related to an offence which is non-cognizable (section 420, Indian Penal Code) and the complaint could not be dismissed for nonappearance of the complainant. Reliance has been placed on section 249 of the Code of Criminal Procedure, 1973 which reads as under :