w w w . L a w y e r S e r v i c e s . i n

R. S. Sundara Raju v/s M/s. Tiumala Finance And Investments, Kakinada & Another

    Criminal Revn. Case No. 849 of 1996 and Cri. Revn. Petn. No. 845 of 1996

    Decided On, 23 December 1996

    At, High Court of Andhra Pradesh


    For the Petitioner: Ch. Dhanamjaya, Advocate. For the Respondent: Public Prosecutor.

Judgment Text

A short but not unimportant point arises for determination in the case. The point involved is as to whether a complaint which is dismissed under Section 256, Cr.P.C. on a totally wrong premise by the Court of learned III Additional Judicial Magistrate of First Class, Kakinada can be revived for hearing further ?

2. The facts of the case may be stated first in detail. It is the facts of the case that have bearing in the instant case because the legal position otherwise is completely settled one that the Subordinate Criminal Courts do not have any inherent power, nor can they review their own orders. This position, as rightly pointed out by the learned counsel for the petitioner, has been settled as long as back in 1977 by the decision of Supreme Court in Bindeswari Prasad Singh v. Kailash (1977) 1 SCC 57 : (1978 Cri LJ 187). The same principle was approved in A. S. Gauraya v. S. N. Thakur AIR 1986 SC 1440 : (1986 Cri LJ 1074). I shall refer to the precise principle laid down a bit later after stating the facts.

3. Respondent No. 1 had initiated a criminal case against the petitioner by instituting C.C. No. 460 of 1995 for offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). The complaint was filed before the learned Ill Additional Judicial Magistrate of First Class, Kakinada. The cognizance of the offence was taken by the learned Magistrate. The petitioner was summoned to appear as an accused before the said Court. The complaint was presented on 15-12-1995. When the matter came up before the Court for bearing on 30-9-1996, the learned Magistrate passed the following order :

"Complainant absent and no representation on his behalf. Accused absent. Petition filed under Section 317 Cr.P.C. is allowed. Hence complaint is dismissed under Section 256 Cr.P.C."

After signing the order immediately thereafter, the learned Court found that in fact the complainant was very much present there and passed the order as follows :-

"Since complainant is present, the above order is restored and suo motu for trial, posted to 17-10-1996."

4. The contention of the petitioner is that once the learned Magistrate dismissed the complaint under Section 256, Cr.P.C. he became functus officio. He could not review the order directing further hearing and the order of acquittal had become final. The only by which it could be set aside was by preferring an appeal by the complainant. The order restoring the case for further hearing is bad in law and therefore, the said order should be set aside.

5. The learned counsel for the petitioner contends that when the Court rightly or wrongly passes order, exercising the powers under Sec. 256, Cr.P.C. that order becomes final and the Court has no jurisdiction whatsoever to reconsider to review the said order. The order of acquittal could only be challenged by filing an appeal by the complainant. He contends that even if the order is passed under any mistaken notion still then the order is final and it cannot be revived. He contends that Section 482, Cr.P.C. clearly recognizes the inherent powers of the High Court only, and not of Subordinate Courts. He relies naturally on the two Supreme Court cases referred above. He also relies on a decision in Ekambara Mudali v. Alamelammal, AIR 1930 Madras 1001 : (1931 (32) Cri LJ 429).

6. In Bindeswari Prasad Singh's case (1978 Cri LJ 187) (SC) the facts were that a complaint was filed before a Sub-Divisional Magistrate for certain trivial offences. The said complaint was initiated on 21-2-1966. It was tossed from the Magistrate to another. Ultimately on 23-11-1968 the complaint was dismissed for default by invoking Section 203, Cr.P.C. on the ground that complainant was absent. On December 7, 1968 the complainant appeared before the learned Magistrate and filed an application for recalling the order of dismissal passed 14 days back. The Magistrate then did not pass any orders but sent the case for enquiry to some other Magistrate. A report in the said enquiry was made and on December 9, 1970, the Magistrate recalled the enquiry from the Magistrate to whom it was given. He gave the enquiry to some other Magistrate and ultimately the impugned order was passed by the Magistrate on 3-5-1972 restoring the dismissed complaint and issuing the process against the accused. It was this order dated 3-5-1972 which was challenged. The challenge reached up to the Supreme Court as the challenge had failed in the lower Courts. It was in this background that the Supreme Court observed that the order dated November 23, 1968 was a judicial order by which the magistrate had given the reasons for dismissing the complaint and as there was no provision in the Code of Criminal Procedure empowering the Magistrate to review or recall the order passed by him, the impugned order was totally bad in law. The Court also observed that Section 561-A (of the Old Criminal Procedure Code, 1898), confers inherent powers on the High Court and the High Court alone. Unlike Section 151, Cr. P.C., the Subordinate Criminal Courts have no inherent powers. It was on this set of facts or, background that the Supreme Court observed as follows :- (at p. 188 of Cri LJ)

"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 November 23, 1968, the Sub-Divisional Magistrate became functus officio and had no power to review or recall the order on any ground whatsoever. In these circumstances, therefore the order event if there be one, recalling order dismissing the complaint, was entirely without jurisdiction."

7. Later in A. S. Gauraya's case (1986 Cri LJ 1074) (SC), a similar point came up for decision. The Supreme Court approved the principle laid down in Bindeswari Prasad Singh's case (1978 Cri LJ 187) (SC). In this case also the complaint was dismissed as the complainant was absent. The Supreme Court observed while referring to the provisions of Criminal Procedure Code of 1898 that Section 249, Cr.P.C. enables a Magistrate to discharge the accused, when the complainant is absent and when the conditions laid down in the said Section are satisfied. The Court further observed that Section 256(1), Cr.P.C. enables a Magistrate to acquit the accused if the complainant does not appear.

The Court next observed as follows : (at p. 1076 of Cri LJ)

"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 or revive it."

The Court also observed :

"The Criminal Procedure Code does not contain any provision enabling the Criminal Court to exercise such an inherent power."

8. Again the facts of this case require attention. A criminal case was filed against the accused before the learned Judicial Magistrate of First Class, New Delhi disclosing certain offences. A cognizance was taken by the learned Magistrate and summons was issued for appearance of the accused on 6-1-1972. However, on 6-1-1972 neither the complainant nor the accused were present and the Magistrate passed order as follows :-

"Accused not present. None present for the complainant also. The complaint is hereby dismissed for default and for want of prosecution."

Thereafter 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 Sri T. S. Sodhi. The complaint be restored. Summon accused for 21-2-1972."

9. That is how the complaint was restored. It will thus to be seen that in both the cases the complaint was dismissed on he ground of absence of complainant. That was a perfectly legal and valid order. The observations referred above, in A. S. Gauraya's case (1986 Cri LJ 1074) by the Supreme Court as per the underlined portion, it is clear that the provisions of Criminal Procedure Code enable a Magistrate to acquit the accused, if and only if the complainant does not appear. Thus the Magistrate gets jurisdiction and power to dismiss the complaint only if the complainant is in fact absent. However, if factually the Magistrate has made a blunder by recording the absence of the complainant though in fact the complainant is very much present, the dismissal of the complaint on the erroneous presumption that complainant is absent would be a totally invalid order and it would be bad ab initio. It would not be an order having any force. It would be a non est order. Such order, as is well known, can always be ignored. It is not necessary that the aggrieved party should challenge the said order in a superior Court. Non est orders are those orders which can be ignored altogether. If the learned Magistrate has for some reason or the other made a mistake of fact in recording the order and without any loss of time has immediately corrected himself by ignoring the non est order, I do not think that he has committed any error or has violated the principle laid down in the Supreme Court cases referred above. The Principle that the Magistrate cannot revive or restore the case once dismissed, applies only when the complainant is in fact absent. It will not be a ground to say that the complainant could no appear in the Court for reasons beyond his control and the complainant cannot ask for restoration of the case on such a ground, for example, if the complainant on his way to Court is held up by some agitation just outside the gate of the Court and is unable to attend the Court room due to reasons beyond his control and, if his absence is so noted by the Magistrate when the case is called out, the dismissal of the case would be final, because in fact the complainant is absent. The complainant will have to approach the appellate Court and ask for relief by showing good cause for his absence. Even if he goes in the Court of Magistrate after some hours on the same day, he cannot seek restoration of the case. But in a case like this when the complainant is present and the Magistrate had instantly noted the presence of complainant and has so recorded it, to dismiss the complaint in spite of it would be tantamount to exercise of jurisdiction when really there was none. In other words where it is found that the order of acquittal on the ground of absence of the complainant is not in accordance with the terms of the said section, it is a nullity and without jurisdiction. Such a null and void order is non est in the eye of law and does not under all circumstances, require to be set aside by a higher Court. Such an order can always be ignored. There is in my view a fundamental difference between a wrong and unjust order and an order without jurisdiction which amounts to a nullity. In order to attract the provisions of Section 256 Cr.P.C. the very condition precedent is that the complainant must be absent. If the complainant had in fact not been absent, dismissing the complaint would be exercising the jurisdiction, when none existed in the Court. After all the object of Section 256, Cr.P.C. is to prevent the dilatory tactics of the complainant. It is not meant to give a tool in the hand of the Court to dispose of the case by resorting to unwarranted provision.

10. The learned counsel for the petitioner brought to my notice, the decision in Ekambara Mudali's case (1931 (32) Cri LJ 429) (Madras) for contending that even if the case is dismissed on the ground of mistake of fact by the Court, the only remedy is to approach the higher Court. What had happened in this case was that the case was filed on 19-2-1929 and was posted to 26-2-1929. On 26-2-1929 when it came up, according to the diary extract it was adjourned to 1-3-1929. When the case was called out on 1-3-1929 the complainant was absent and the accused was acquitted under Section 247 Cr.P.C. (Code of Cr.P.C. 1898). On March the 5th the complainant's counsel represented that in fact the case was posted to fifth and not to first. On verification it was indeed found that the case was posted to fifth and not on first. The learned Magistrate therefore, took the case on file. The said order of taking case on file was challenged in the High Court and the High Court allowed the petition by holding that the only course left was to approach the Higher Court. The Magistrate had no jurisdiction to revive the case even though there was mistake of fact. I do not think that the proposition laid down in this case is quite correct. On the other hand, in Pritam Singh v. State, AIR 1969 All 513 : (1969 Cri LJ 1329) and Radha Kishan v. Ram Nath, 1975 Cri LJ 1579, which are of Allahabad and Calcutta High Courts respectively, it has been specifically held that if the case is called out on a date which was in fact not fixed for hearing and if the complainant is absent on that day, the Magistrate has no jurisdiction to dismiss the complaint and if such dismissal is ordered, the case can be revived by the Magistrate as the order of dismissal is invalid since its inception. The decision in Ekambara Mudali's case has been referred to in Pritam Singh's case and has not been approved. I am in full agreement with the basic principle laid down in Pritam Singh's case and Radhakishan's case referred above.

11. As pointed out already the principle laid down in the Supreme Court cases is indeed binding on all the Courts throughout the country. But I have pointed out that even the Supreme Court has very carefully stated the legal position that the Magistrate gets jurisdiction to dismiss the complaint only if the complainant is absent. It would be traversty of justice if the complainant in spite of being present faces the order of dismissal on ground of his absence merely due to some wrong assumption on the part of the Magistrate or due to some confusion. As observed by the Allahabad High Court in Pritam Singh's case (1969 Cri LJ 1329) there is a clear distinction between an erroneous order and an order which is a nullity. The order which is passed under a mistake of fact or by a Court which has no jurisdiction to pass the order, is a nullity. On the other hand, an order which is passed not because of a mistake of fact but on account of some misappreciation of facts or law is an erroneous order. At the cost of repetition it may be pointed out that there was a mistake of fact in the instant case when Court presumed that the complainant was not present though in fact he was very much present and the fact has been recorded by the Court itself immediately as indicated above. If the farfetched argument of the learned counsel for the petitioner is accepted that once the order is passed by the Magistrate even without jurisdiction due to mistake of fact, the only remedy left is to approach the higher Court, it would result in causing grave injustice. One example can be given merely by way of illustration where an order of dismissal would be void ab initio. Suppose there are more than one criminal cases pending before the learned Magistrate of two different complainants of same name, though the remaining details of surname and father's name may be different and, in such a case the complainant in one of the cases is absent, but the Magistrate due to some error records the order of acquittal on the docket of a different case, in a hurry, would it mean that in the case in which the order has been written and signed would become final in respect of the complainant in that case even though that complainant is present ? An answer would obviously b

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e no because, the order would be totally invalid. Therefore, it is wrong to say that under any circumstances if the order is passed and signed it becomes final and the only way by which it can be challenged is by going to the superior Court. It will depend on the facts of the case as to whether the order had become final or not. If the order is passed in total disregard to the jurisdictional aspect, then the order would be void and a nullity and need not be challenged in a superior Court but can be ignored and the matter can be proceeded further from the stage where it was before passing of the non est order. Having regard to all the facts and circumstances of the case, I am of the view that in the instant case, the impugned order passed by the learned Magistrate was nothing but ignoring, invalid and non est order passed by him earlier and thereby doing the proper thing by continuing further with the case. The petition in the circumstances, deserves to be dismissed. 12. Even assuming for the sake of argument that the impugned order passed in the instant case is bad and that the only way by which the earlier dismissal order of same day could be challenged is by approaching the High Court, even in that case can I would suo motu exercise the powers of revision of this Court or, the inherent powers of this Court to set aside the order of dismissal of the complaint and restoring the case. Dismissal of complaint in such circumstances like present one would be a total abuse of process of law and would require correction at the hands of this Court. 13. Thus looked at from any point, I am of the firm view that this revision deserves to be dismissed. It is accordingly dismissed. Revision dismissed.