Tarsem Singh vs Ajit Singh

Harmohinder Kaur Sandhu, J.

Ajit Singh filed a complaint for offences under Sections 437, 325, 323 read with Section 34 of the Indian Penal Code against Darshan Singh, Tarsem Singh and Jagdish Ram in the Court of Judicial Magistrate 2nd Class, Hoshiarpur. After recording preliminary evidence, the trial Court summoned all the accused to face trial for the offences mentioned in the complaint vide his order dated 28th September, 1991. On 18.10.1991 Tarsem Singh and Jagdish Ram appeared in Court, Darshan Singh did not appear. The complainant Ajit Singh made a statement giving up Tarsem Singh accused and on the basis of his statement, the trial Court passed an order that hereby Tarsem was discharged for the time being as he had gone to England. On 15.2.1992, the counsel for the complainant Ajit Singh moved an application alleging that Tarsem Singh, who had gone abroad, has since returned to India so he may be summoned to stand trial along with other accused. Tarsem Singh has filed the present revision petition assailing this order of summoning passed by Mr. Sanjiv Berry, Judicial Magistrate 2nd Class, Hoshiarpur. The order was assailed on the ground that when the petitioner was once discharged, he could not be summoned again and the trial Court had no authority to review its own order. Moreover, the offences under Sections 323 and 447 of the Indian Penal Code are triable as summons case and the discharge in these cases meant acquittal. After passing an order of acquittal, the trial Court became functus officio and the petitioner could not be summoned again to stand trial for those offences. It was further pleaded that in the impugned order it was mentioned that notice of the application filed by the complainant was given to the defence counsel who had no objection but this observation was erroneous as neither the petitioner had appeared in the trial Court at any stage, nor he had engaged any counsel.

I have heard, Mr. J.B.S. Gill, learned Counsel for the petitioner and Mr. Satbir Singh, learned Counsel for the respondent.

Ajit Singh complainant filed a complaint against Darshan Singh, Jagdish Ram and the present petitioner for the offences referred above but as Tarsem Singh had gone to England, the complainant gave up the petitioner and the trial Court had passed an order on 18.10.1991 whereby petitioner was discharged. The present revision petition is to be allowed on the short ground that the order of discharge passed by the trial Court could not be recalled by a subsequent order. The contention of the learned Counsel for the respondent that the order of discharge was made for the time being and could be reviewed subsequently, cannot be accepted because under the Code of Criminal Procedure, there is no provision whereby the accused person can be discharged for the time being. The discharge order terminated the proceedings qua the petitioner and the remedy available against the same was by way of revision. There is no provision in Criminal Procedure Code empowering a Magistrate to review or recall an order passed by him. Inherent powers under Section 482 of the Criminal Procedure Code are only given to the High Court unlike Section 151 of the Code of Civil Procedure, consequently criminal courts have no inherent powers. The order of summoning Tarsem Singh by the trial Court after he was discharged, is not valid and cannot be upheld.

As a result, I accept this revision petition and set aside the impugned order dated 15th February, 1992.