AI Structured Summary
Not yet generated for this judgment
Judgment
Ashutosh Mohunta, J.—The present petition has been filed for quashing the complaint u/s 133 Cr.P.C. (Annexure P1).
Briefly, the facts are that a complaint (Annexure P1) was filed on November 2, 1990 by respondent Nos. 1 and 2 on the ground that the petitioner is creating nuisance near their house. The case was fixed for evidence of the complainant on March 25, 1991. However, the complainant did not lead any evidence. Thereafter the case was fixed for the evidence of the respondent on March 17, 1997. The respondent also did not lead any evidence. The case was adjourned to July 17, 1998, on which date neither the complainant nor his counsel came present in Court and, therefore, the S.D.M., Hisar, ordered that the case be filed for want of prosecution. Against the said order, an application was filed for restoration of the case and the case was restored vide order dated August 27, 1998 (Annexure P5) by the Sub Divisional Magistrate, Hisar. It is against this order that the present revision petition has been filed.
Mr. N.K. Sanghi, learned counsel for the petitioner, contends that once the case is dismissed for want of prosecution, then the Criminal Court has no power to recall or review the order of dismissal. The learned counsel relies on Maj. Genl. A.S. Gauraya and Another Vs. S.N. Thakur and Another, , and Bindeshwari Prasad Singh Vs. Kali Singh, . In Maj.Gen.A.S. Gauraya''s case (supra) it was held by the Apex Court that the Magistrate has no inherent pore to review his order of dismissal and restore the case. In Bindeshwari Prasad Singh''s case (supra) also it was held that there is no provision in the Code of Criminal Procedure to review to recall a judicial order passed by him. Inherent powers u/s 561-A are only given to High Court and unlike Section 151, C.P.c., the subordinate criminal courts have no inherent powers. In this view of the matter, the learned counsel contends that the order dated August 27, 1998 (Annexure P5) passed by the Sub Divisional Judicial Magistrate, Hisar, was wholly illegal.
A perusal of the aforesaid authorities shows that once a case is dismissed for want of prosecution, then a Magistrate has no inherent power to review his order of dismissal and restore the case. A second complaint is permissible if it is within limitation. However, as far as the first complaint is concerned, the Magistrate has no power for restoration and the only remedy available to the complainant is to file a revision petition. In the present case, the recalling of the order by the Sub Divisional Magistrate was clearly beyond jurisdiction.
In view of the above, the order dated August 27, 1998 passed by the Sub Divisional Magistrate, Hisar (Annexure P5), is set aside and, accordingly, the complaint (Annexure P1) is quashed.
Consequently, the Criminal Miscellaneous application is allowed.