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Judgment
Shivanugrah Narain, J.—Petitioner Indrajit Bahadur Singh was at the relevant time an officer of Dena Bank Ltd, Patna while Shri Chandra Kant Pritam Lal Mehta, opposite party no. 2 was the Branch Manager thereof. On 18.6.1971 opposite party no. 2 sent a written report to the officer-incharge Kotwall Police Station alleging that the petitioner had participated in the defalcation of two sums of Rs. 8000/- and Rs. 7100/- respectively which were withdrawn illegally from the Bank. In view of the contentions raised, it is not necessary to set out the allegations in any further detail. The police after investigation submitted what is to be popularly called a final report holding the allegations not proved. On behalf of opposite party no. 2 a protest petition was filed. On behalf of the petitioner a counter petition was filed praying that the protest petition be rejected. By his order dated 22.11.1972 the Sub-divisional Magistrate, Patna saying that he would not accept the final report directed that the informant, meaning opposite party no. 2 should appear before the Court for the examination on solemn affirmation on 25.11.1972. On 25.11.1972 consequent upon that order the opposite party no. 2 (hereinafter called ''the complainant'') was examined on solemn affirmation and the learned Magistrate after calling for the case diary, supervision note by his order dated 17.3.1973 directed Shri Lala Agam Prasad Magistrate, First Class to hold judicial inquiry into the complaint. The inquiry report of the Magistrate Shri Lala Agam Prasad was put up before the learned Sub-divisional Magistrate on 17.7.1974, who directed that the case be put up before the Chief Judicial Magistrate on 31.7.1974. On 31.7.1974 the complainant was absent and the Chief Judicial Magistrate, Patna before whom the case had come up passed the following order:--
Seen the report of the enquiring officer. He has reported that the complainant has failed to make out a prima-facie case.
Case called out several times. None responds on behalf of the complainant, Hence the final report is accepted, the protest cum complaint petition is dismissed, and the accused persons are discharged.
On 2.8.1974 the complainant filed a petition alleging that inspite of his efforts the complainant''s counsel or the counsel''s clerk could not know about the date fixed in the case and, therefore, he could not appear on 31.7.1974 and that the inquiry report showing that no prima-facie case had been made out was not correct and prayed that the order dated 31.7.1974 be recalled and the protest cum complaint petition be revived and heard on merits Allowing this application on 2.8.1974 the Chief Judicial Magistrate passed the following order:--
Complainant files a petition for recalling the order dated 31.7.1974 and reviving the protest-cum-complaint petition, Heard. In view of the ruling reported in Prithvi Bhagat and Another Vs. Birju Sada, , the complaint petition should be revived as it was dismissed for default. Let the protest-cum-complaint petition be revived and be numbered as a complaint case and put up on 12.8.74 for hearing on the petition against the report of the E.O.
The petitioner, the person complained against, being aggrieved by the aforesaid order dated 2.8.1974 has come up in revision before this Court and prays that the aforesaid order reviving the complaint petition be quashed.
Mr. Gorakh Nath Singh, learned counsel for the petitioner first contended that the learned Chief Judicial Magistrate had no jurisdiction to recall the order dated 31.7.1974 dismissing the complaint and to revive the complaint. This contention is plainly misconceived and is in the teeth of the decision of the Supreme Court in (1) Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, . Kapur, J. who spoke for the majority of the Supreme Court in that case observed as follows:
An order of dismissal u/s 203, Criminal Procedure Code, is however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced.
The aforesaid decision of the Supreme Court is, therefore, a clear authority for the proposition that in spite of the dismissal of a complaint a Magistrate has jurisdiction to entertain a fresh complaint on the same facts though he will exercise this jurisdiction only in exceptional circumstances. There is no distinction in principle between entertaining a fresh complaint on the same facts and an order reviving the complaint which had been dismissed earlier. That the Magistrate can in a proper case revive the complaint which had been dismissed earlier was specifically laid down by Das, J (as he then was) who delivered the decision of Bench in Subh Narain Singh and Others Vs. M.M. Chakravarty and Others, . Das, J (as he then was) observed in that case as follows:--
I do not think that the jurisdiction of the Magistrate necessarily depends on the filing of a fresh complaint; and the Magistrate has jurisdiction to revive the old complaint dismissed u/s 203, Cr.P.C.
A large number of decisions were cited by Mr. Gorakh Nath Singh in support of his aforesaid contention, namely, (2) Gajo Chaudhry and others Vs. Debi Chaudhry and another (3) Rasik Tatma Vs. Bhagwat Tanti, , (4) Jyotish Kotwal and Others Vs. Dwarka Prosad Marwari and Others, , (5) Shyama Devi Vs. Sadan Sewak, and (6) Hansabai Sayaji Payagude Vs. Ananda Ganuji Payagude, . But as the law has been authoritatively laid down by the Supreme Court in clear and unequivocal terms, after a full consideration of the matter, I do not think it necessary to examine these decisions. The first contention must, therefore, fall.
Mr. Gorakh Nath Singh next contended that even assuming that the Magistrate had jurisdiction, this was not a fit case in which the jurisdiction to revive the complaint dismissed earlier should have been exercised. In my opinion, this contention is equally devoid of any substance. I have already set out the order dismissing the complaint and the order reviving the complaint. In the order dated 31-7-1974 dismissing the complaint, the expression "hence the final report is accepted, the protest-cum-complaint petition is dismissed" occurs after the sentence "None responds on behalf of the complainant". In the context and because of the use of the expression "hence", it is crystal clear that the learned Magistrate dismissed the complaint because of the non-appearance of the complainant. Though the learned Magistrate has referred to the report of the inquiring officer and the opinion expressed by him, the learned Magistrate does not appear to have based his decision of dismissal of complaint on the result of the inquiry, he has based it only on the absence of the complainant. In this connection, we should remember that the learned Magistrate himself construed his order dated 31-7-1974 as an order dismissing the complaint for default. In the order dated 2-8-1974 he has stated.--"In view of the ruling reported in Prithvi Bhagat and Another Vs. Birju Sada, , the complaint petition should be revived as it was dismissed for default."
Now after the complainant has been examined on solemn affirmation and the report of an inquiry order u/s 202 of the Code of Criminal Procedure received, the learned Magistrate may not dismiss the complaint merely on the ground of absence of the complainant. He can dismiss the complaint only if after considering the statement on oath of the complainant and the result of the inquiry under Section, 202 he was of the opinion that there was no sufficient ground for proceeding u/s 203 Cr.P.C. The order of the learned ''Magistrate dated 31.7.1974 dismissing the complaint, therefore, is an order which was manifestly erroneous or foolish and, therefore, a fresh complaint on the same facts could be entertained or the complaint could be revived in accordance with law laid down by the Supreme Court in the case referred to above. As I have stated earlier in the petition filed by the complainant on 2.8.1974, he had alleged that he was unable to know that 31.7.74 was the date fixed in the case in spite of enquiries by his agents. In these circumstances, if the Magistrate recalled his order dismissing the complaint, it must be held that the learned Magistrate was satisfied that the complainant had sufficient cause for not being present in court when the case was called out on 31.7.1974.
The present case is on all fours with the decision of this court in (7) Criminal Revisions 2618 and 2622 of 1968 (Keshab Prasad Bhagat alias Nepali Bhagat and others V. Ramnarain Choubey alias Ramnandan Choubey) disposed of on the 14th April, 1969 in which a learned single Judge of this Court G.N. Prasad, J. upheld an order of the Sub-divisional Magistrate, restoring a complaint which had been dismissed for default of appearance of the complainant. In that case his Lordship pointed out that "there are series of decisions on the point that the dismissal of a complaint u/s 203 of the Code in default of the appearance of the complainant particularly in a warrant case, is no bar either to the revival of the complaint or to the entertainment of a second complaint on the same facts." The second contention of Mr. Singh must, therefore also fail.
The last contention which Mr. Singh advanced before us is that the order of the learned Magistrate reviving the complaint is void, in as much as, it was passed in contravention of the principles of natural justice without giving the person complained against an opportunity of being heard for setting aside the order dismissing the complaint. Mr. Singh argues that after the complaint was dismissed, a valuable right had accrued to the person complained against and as that right was being interfered with by the order reviving the complaint, he was entitled to be heard before such an order was passed. In my opinion, this contention is also misconceived. Prior to the issue of process, the person complained against (sic) no locus standi in the case. It (sic) well settled that the person complained against is not entitled to take any part in the inquiry u/s 202 of the Code of Criminal Procedure. See the decision of the Supreme Court in Chandra Deo Singh V. Prakash Chandra Bose alias Chabi Bose and another AIR 1963 SC, 1420. In these circumstances, there was no necessity of hearing the person complained against before recalling the order dismissing the complaint. It is significant that Section 436 of the Code of Criminal Procedure 1898 which empowered the High Court or the Sessions Judge to direct further inquiry both into any complaint which had been dismissed u/s 203 or Sub-section (3) of Section 204 and into the case of any person accused of an offence who had been discharged made it obligatory for the Court directing further inquiry to give an opportunity to the person who had been discharged why such direction should not be made but it did not make it obligatory on the High Court or the Sessions Judge to give the person complained against an opportunity of showing cause why further inquiry should not be directed into a complaint which had been dismissed u/s 203. Mr. Nawal Kishore Prasad Sinha, the learned counsel for the opposite party rightly pointed out that if, as is clear from the provisions of Section 436 of the old Code there is no necessity of hearing the person complained against before setting aside the order of dismissal of complaint u/s 203 even where the dismissal has been made after considering all relevant materials, there can be no necessity for affording an opportunity of being heard to the person complained against whom the complaint was dismissed for default of appearance of the complainant. In the unreported decision of this Court to which I have just referred, G.N. Prasad, J. also held that "it was not at all necessary for the learned Sub-divisional Magistrate to have given notice to the petitioners (meaning thereby the persons complained against) before deciding to restore the petition of complaint." Though in his order dated 31-7-1974 the learned Magistrate after stating that the complaint was dismissed went on to add "and the accused are discharged", it is obvious that the order was not an order discharging the accused within the meaning of the expression as used in Section 436 Cr.P.C. for prior to issue of process there can be no order discharging the accused. The impugned order is clearly an order setting aside the dismissal of the complaint and not an order discharging the accused. The last contention of Mr. Singh must, therefore, also fail.
As the application must fail even if it is considered on merits and decided on the footing that the Code of Criminal Procedure 1898 applies, it is not necessary to decide the preliminary objection raised on behalf of the opposite party that the present application must be governed by the Code of Criminal Procedure 1973 and in view of the provisions of Section 397(2) of the Code of Criminal Procedure 1973, it is not maintainable because the impugned order dated 2-8-1974 reviving the complaint is an interlocutory order against which no revision now lies.
I would accordingly dismiss the application.
Madan Mohan Prasad, J.
I agree, subject to which I am going to state hereafter.
The point which I would like to add for the purpose of repelling the argument of the counsel for the petitioner that the order could not be recalled without giving a hearing to him, in view of the order passed by the learned Magistrate discharging the petitioner is that in my view, that order did not amount to an order of discharge under any provision of the Code other than Section 173(3). From a reading of that Section it would appear that when an accused had been released on his bail bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. In the present case, the final report was submitted wherein it was stated that the case was true, but there was no clue. The reporting officer further prayed that the accused might be discharged from the bail bond. It was this final report with which the Magistrate was dealing and his order, therefore, was one u/s 173(3) of the Code. In that view of the matter, reliance on the meaning of the word discharged in Section 436 of the Code of Criminal Procedure (Proviso) is misplaced. That refers to cases of discharge under other sections, e.g., Sections 209 and 251A and not to discharge of bail bond u/s 173(3) of the Code.
With regard to the application of the principles of natural justice, it is well settled that principles of natural justice do not dictate giving a personal hearing to the person likely to be affected by the decision at any stage and in every circumstance. The question as to whether a personal hearing ought to be given has to be determined on the facts and the circumstances obtaining in each case. I have held so on good authority in the case of Sm. Shivarani Kumari V. The President, Board of Secondary Education, Bihar and ors. (1975 Patna 12). The question thus arises whether in the present case the principles of natural justice required a hearing to be given to the petitioner at the stage at which the Magistrate passed the impugned order. In the present case, the stage was much earlier to the summoning of the accused, and when he had no right to be heard. It must also be borne in mind that he will have the right to be heard at a subsequent stage after he has been summoned, if at all, to take his trial. At this stage, therefore, even on the ground of principles of natural justice no hearing was necessary to be given to the accused. The argument is thus of no avail.