Case ID: 3532

Judgment:
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. A.K. Sen and A.K. 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. K.P. Sinha	 another Magistrate. Thereafter	 the matter was sent to Mr. S.N. 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. K.P. Sinha and transferred to Mr. A.R. 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 order	would 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 Sarkar(1). 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. M.R. Appeal allowed. (1) [1962] 2 Supp. S.C.R. 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. P.C. Thereafter on an application by the respondent for recalling his dismissal order	 the Magistrate again sent/the 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.