MAJ. GENL. A.S. GA!JRAYA & ANR.

Vo S.N. TIIAKlJR AND ANR..

APRIL 25, 1986

[V. KHALID AND M.M. DUTT, JJ,]

~~ Criinal Procedure Code, criminal Courts h&ve inherent provisions of the Code.

1973 - Whether subordinate jurisdiction outside the

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 -r punishable under s. 67 and 72-<:(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 stllllllrJns 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 Magistre 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 4 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 judgment delivered by the Supreme Court on 5th August, 1976 in the case of Bindeshwari Prasad Singh v.

Kali Singh, [1977] l s.c.R. 125 holding that no Criminal Court had any inherent jurisdiction, not provided for in the j- Criminal Procedure Code, the appellants moved an application before the Metropolitan Magistrate contending tt all proceedings after the dismissal of the complaint by order dated 6th Janµary, 1972 were without jurisdiction in the light

SUPREME COURT REEORTS [19861 2 s.c.R.

of the law laid down by the Supre!IE! Court and requested the Magistrate to drop further proceedings.

The Magistratelr 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 pronounce!IE!nt as to the position of law in a judicial decision by the Supre!IE! Court cannot be treated as a sort of legislation by Parlialllmt giving retrospective effect as to enjoin re-appointing of all DBtters which have already beco~

final and closed. Thereupon, the appellants filed a writ petition before the Righ Court and the sa!IE! was dismissed in limine. Renee this appeal by special leave.

Allowing the appeal.

REID: 1. In view of the law laid down by Supre!IE! Courqin Bindeshwri Prasad Singh v. Kall Singh, [1977] 1 S.C.R.

125, the order of the Righ Court is set aside and that of the Magistrate dated 6.1. 77 dismissing the complaint is restored.

[781 CJ

2. {i) Section 249 of the Criminal Procedure Code enables a OBgistrate to discharge the accused when the colainant is absent and when the conditions laid down in the said section, l_ are satisfied. Section 256(1) of the Criminal Procedure Code enables a DBgistrate 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 sa!IE! ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction. -f.-v

[776 E-F; 777 G-R]

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, na!IE!ly, Section

561...,\ which, however, confers these powers on the High Court-t and the High Court alone.

Unlike Section 151 of Civil Procedure Code, the subordinate criminal courts have no inherent powers.

In these circlllll!ltances, therefore, the learned Magistrate had absolutely no jurisdiction to re-call the order dismissing the complaint. [778 C-E]

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MAJ, GENL. A.S. G\URAYA v. S, N, '.IHAKUR 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 B Supreme Court in Praatha Mith Taluqdar v. Saroj Ranjan Sarkar

[1962) Suppl. 2 s.c.R. 297. [777 A-B; 776 HJ

Bindeem.ri Prasad Singh v. lrali Singh, [1977] 1 s.c.R. 125, followed.

B.D. Sethi v. V.P, De-, 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. Crcial 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 DBndating under Art. 141, every court subordinate to this Court to accept it. The High Court could have, if it had examined the DBtter, 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

lllisreading of Article 141 of the Constitution. [779 F-G; D-E]

CRIMINAL APPELIATE 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,

Raj ender Nath Sachar, D.N. Mishra, Ms. L. Goswami and T.M. Ansari with him for the Petitioners.

V. Mahajan and c.v. Subba Rao for the Respondents.

The Judgrent of the Court was delivered by

KHALID, J. This Criminal appeal by special leave, B involves the question

Whether a Sub-ordinate Criminal Court has any inherent jurisdiction outside the provisions of the~ Criminal Procedure Code ? ·

c 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 D 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 SUlllll¥lns to the accused to appear on 6.1.1972.

On 6, 1.1972 neither the complainant nor the accused were E 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." F t On 13.1.1972, the complainant filed an application for restoration of the complaint. On 20.1.1972, the Magiatrate

passed the following order : ~

"I heard Shri

T.S.

Sodhi.

The complaint be restored. SUlllll¥ln accused for 21/2."

On 21.2.1972, the accused petitioners iooved an application before the Magistrate stating that the order dated 20.1.1972 was without jurisdiction since the Magistrat; had become_.. functus officio, by his order dated 6.1.1972. This application H 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•

K\J, GENL. A.S. G\URA'V\ v. S, N. 'Il\AKUR [IBALID, J,] 775

Aggrieved by this order, the petitioners filed a revision before the Court of Additional Chief Judicial Magistrate, New Delhi, wl"iich was dismissed on 6/7/1973.

This was followed by artother revisiort before the <Hgh Court of Delhi.. The Delhi Righ Court dismissed the revisiort by its order dated 10.1.1975, relyirtg upon art earlier decision of the sane Court to the effect that a criminal court had certain ""+ irtherent powers, though rtot specifically nerttioned in the Code.

On 5.8.1976, this Court delivered its Judgnent in the <:ase of Bindesbwarl Prasad Singh v. Kali Singh, [ 1977] 1 S.C.R. 125 holding that no criminal court had arty irtherertt jurisdiction, not provided for in the Criminal Procedure Code. -t The petitioners, a rued with this decision, moved an application before the 11!tropolitan Magistrate on 22.12.1976, corttending that all proceedirtgs, after the dismissal of the

complairtt by order dated 6.1.1972, were without jurisdiction in the light of the law laid dowa by this Court and requested the Magistrate to drop f ruther proceedings. The learned 11!tropolitan Magistrate accepted this contention and by his order dated 16. 7, 1977 dropped the proceedings against the ,..l petitioners.

Aggrieved by this order, the respondertts filed a revision before the Sessiorts 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 cart be no dispute whatsoever. At the sane tine a pronouncenent as to the positiort of law irt a judicial - decision by the Suprene Court cannot be treated as a sort , of legislation by the Parlianent giving retrospective effect as to enjoin reopening of all matters which -have already becone final and closed."

Aggrieved by this order the petitioners moved the Delhi -t 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 nentioned above and contending that the order of the Sessions

JuJge 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 they 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 : Raa 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-tenquiry 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 ... " --4

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 magistate 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 Pramatba Nath Taluqdar v. Saroj Ranjan Sarkar, [1962]

+ I

K\J. GENL. A.S. ~IJRAYA v. S.N. 'l'iAKUR [mALID, J.] 777

Suppl. 2 S.C.R. 297. Filing of a second complaint is not the saoe 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 Tioes 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 Judgoent 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 Judgoent or a final order there is nothing in the Code of Criminal Procedure prohibiting the Magistrate from entertaining a fresh application asking for the saoe relief on the saoe 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 E 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 F 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 Judgoent. 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 G 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 jursidiction.

For our purpose, this matter is now concluded by a j udgnent of this Court in the case of Biodeshwari 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 satisf led 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 doe_s contain a 1-- provision for inherent powers, namely, Section i- 561-A which, however, confers these powers on the High Court and the High Court alone. l'nlike Section

151 of Civil Procedure Code, the subordinate criminal courts have no inherent powers. In these circu111Stances, 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, suunnoning the accused which llllSt 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. -t-' 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,

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MAJ. GENL. A.S.. GAURAYA v. S .N. THAKUR [KHALID, J.] . 779 - .

however, unable to agree with this contention because there was no fresh complaint and ic is not well settled that a second complaint can lie only on fresh facts or even on th~ previous facts only if a special case is made out. This has been held by this Court in Pramatba 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 llllSt 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 sore 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 Court 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 ear lier order of the High Court binding on him.and had allowed the revision on that ground, we could hae undrstood the reasoning behind it. lie got rid of the effect of this CouEt's Judnt by observing that a decision by this Court cannot be treated as "a sort of legislation by Parliarent" 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 Judgrents of this Court are concerned, care up for consideration before this Court recently in Shenoy and Co. v.

Coim!rclal To: Officer, [1985] (2) s.c.c. 512 to which one of Uf! was a party. It is not necessary to refer to the facts of that case, in detail. Suffice it to say that the contention

SUPREME COURT RE!DRTS

that the law laid down by this Court i~ 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 Supren:e Court sha 11 be 't binding on all courts within the territory of+- India." A n:ere reading of this article brings into sharp focus its expanse and is all pervasive nature.

In cases like this, where nun:erous 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 J.

the decision was taken by th is 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 1 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 Judgoent, 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 Judgoent 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

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MAJ. GENL. A.S. GAURAYA v. S.N. THAKUR [Kl!Al:.ID, J.) 781

case. It was held that the Judgment rendered by this Court in one appeal, took away the finality of the colDllkln 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 !IKlre than 15 years and it is high ti112 that we give it a decent burial. In view of the law laid down by this Court in BfndeslJwari Prasad Singb'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.