Criminal Misc. No. M-17072 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-17072 of 2008 Date of decision: 1st May, 2009 Ram Kishan and others ......Petitioners Versus State of Haryana and others ......Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Ms. Ranjana Salaria, Advocate for Mr. Dheraj Bali, Advocate for the petitioners. Mr. Amit Khatkar, AAG, Haryana for respondent no. 1 and 2 to 5. Mr. Parminder Singh, Advocate for complainant-respondent no. 1-A. RAJIVE BHALLA, J. Prayer in this petition filed under Section 482 of the Code of Criminal Procedure is for quashing of the order dated 29.04.2008, Annexure P-'3', whereby the learned Judicial Magistrate Ist Class, Karnal, has allegedly reviewed-recalled his order dated 12.02.2008, dismissing the complaint for non appearance of the complainant. Counsel for the petitioners submits that the Code of Criminal Procedure(hereinafter referred to as the “Act”) does not confer the power of review or recall, except to the extent provided by Section 362 of the Act and then also to correct clerical or arithmetical errors. Once a Magistrate dismisses a complaint, for whatever reasons, he is rendered functus officio and therefore, cannot entertain an application praying for recalling of an order or pass an order restoring a complaint. Counsel for the respondents does not deny the fact that a court, exercising jurisdiction under the code does not have power to Criminal Misc. No. M-17072 of 2008 2 review or recall its order but submits that as the Magistrate was not empowered to dismiss the complaint for non-prosecution, his order restoring the complaint is just and therefore, the present petition be dismissed. I have heard counsel for the parties and perused the order dated 29.04.2008. On 12.2.2008 the learned Magistrate dismissed the complaint for non-appearance of the complainant/respondent. The respondent filed an application for recalling of this order. Vide order dated 29.4.2008, the learned Magistrate recalled the order dated 12.02.2008 and the complaint was restored. The Act does not confer the power of review or recall. An order already passed cannot be reviewed or recalled except to the extent where it proposes to correct clerical or arithmetical errors. A complaint, once dismissed, for whatever reason, cannot be restored. The question whether the Magistrate has power to dismiss a complaint in default for the complainant' s non-appearance, is a matter apart, and is irrelevant as the legality of the order dismissing the complaint in default is not subject matter of the present petition. It is therefore, apparent that the learned Magistrate had no jurisdiction to pass the order dated 29.04.2008 recalling his order dated 12.02.2008 and restoring the complaint. In view of what has been stated hereinabove, the revision petition is allowed and the order dated 29.04.2008 is set aside with liberty to the respondent to seek his remedy in accordance with law against the order dismissing his complaint in default, for his non- appearance. [RAJIVE BHALLA] JUDGE 1st May, 2009 SKaushik