TION Criminal Appeal No 74 of 1976
Appeal by Special Leave from the Judgment and Order dated 28 7 75 of the Patna High Court in Criminal Revi sion No 1046 of 1972
AK Sen and AK Nag for the Appellant
D Gobrudhan for the respondent
The Judgment of the Court was delivered by FAZAL ALI J
This appeal by special leave exhibits the careless and cavalior manner in which the Sub Divisional Magistrate appears to have dealt with the complaint filed before him as far back as 21st February 1966
The com plaint itself contains allegations of a very petty nature of which hardly any cognizance could have been taken and which would be a trivial act under Sec
95 of Indian Penal Code for which no criminal proceedings could be taken
There were proceedings under Section 107 between the parties and both 126 parties applied for copies of these proceedings on the 20th December 1965
It is alleged in the complaint that the appellant got the copy which was meant for the complainant by signing his name
The complainant also got his copy a few days after eventually
Such a small matter could have been resolved by the Magistrate himself if he had persued the complaint carefully and was certainly not a  matter for which a detailed inquiry under section 202 Code of Criminal Procedure 1908 was called for
It appears howev er that the Magistrate tossed the complaint from one Magis trate to another for inquiry and report without conclusive results starting from 21st February 1966 to 23rd November 1968 that is for a period of more than two years
Ulti mately on the 23rd November 1968 the complaint was dis missed under section 203 of the Criminal Procedure Code on the ground that the complainant was absent and did not show any interest in the inquiry ordered by the Court
On the 7th of December 1968 the respondent appeared before the Magistrate and filed an application for recalling his order
The Magistrate passed no orders on this applica tion but he sent the case  for inquiry to Mr KP Sinha another Magistrate
Thereafter the matter was sent to Mr SN Dube on 30th of October 1969
Mr Dube reported that the inquiry had been completed and hence he returned the papers
of inquiry to the Magistrate
On 9th of Decem ber 1970 the Magistrate recalled the inquiry from Mr KP Sinha and transferred to Mr AR Ansari and on the basis of his report the learned Magistrate passed the order taking cognizance of the case and summoned the accused by his order dated 3 5 1972 and issued processes against the appellants
It would thus appear that a very petty matter was allowed to have a long and chequered career because the Magistrate refused to apply his mind either to the  allegations made in the complaint or to control the proceedings before him
In support of the appeal Mr Nag has submitted a short point
He has contended that the Magistrate had no jurisdic tion to recall the order dated 23 11 1968 by which he had dismissed the complaint under Section 203 of the Code of Criminal Procedure
In fact there was no express order recalling the order dismissing the complaint but by a process of deeming fiction the Magistrate thought that the order dismissing the complaint stood recalled
We might mention that the order dated 23rd November 1968 was a judicial order by which the Magistrate had given full reasons for dismissing the complaint
Even if the Magistrate had any jurisdiction to recall 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 recalling 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 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 151 127 of Civil Procedure Code the subordinate criminal courts have no inherent powers
In these circumstances there fore the learned Magistrate had absolutely no jurisdic tion to recall 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 recall that order on any ground whatsoever
In these circumstances therefore the order even if there be one recalling order dismissing the complaint was entirely without jurisdiction
This being the position all subsequent proceedings follow ing upon recalling the said orderwould 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 recalling the order of dismissal of the complaint would amount to a fresh complaint
We are however unable to agree with this contention because there was no fresh complaint and 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
This has been held by this Court in Pramatha Nath Taluqdar vs Saroj Ranjan Sarkar1
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
MR Appeal allowed
1 1962 2 Supp
SCR 297


Summary:
The respondent s complaint against the appellant regarding a trivial matter was tossed for three years between various magistrates for inquiry and report without conclusive re sults and was ultimately dismissed under section 203 Cr
PC Thereafter on an application by the respondent for recalling his dismissal order the Magistrate again sentthe case for inquiry ultimately issued process against the accused
The appellant contended before this Court that the Magis trate had no jurisdiction to recall his order of dismissal
According to the respondent his application for recalling the dismissal order would amount to a fresh complaint
Allowing the appeal this Court HELD 1  There is absolutely no provision in the Code of Criminal Procedure of 1908 which applies to this case empowering a Magistrate to review or recall an order passed by him
Unlike section 151 of the Civil Procedure Code the subordinate criminal courts have no inherent powers
After having passed the order the Sub Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever
126 G H 127 A 2 There was no fresh complaint and it is now well settled that a second complaint can be only on fresh facts or even on the previous facts only if a special case is made out
127 C D Pramatha Nath Taluqdar vs Saroj Ranjan Sarkar   followed