JUDGMENT
Jagdish Chandra, J.
(1) This petition under section 482 of the Code of Criminal Procedure. 1973 (in short ‘the Code’) has been filed by the petitioner Chander Mohan Chawla assailing the order dated 11th October, 1985 passed by Smt. Pratibha Rani, Metropolitan Magistrate, Delhi, as also the order dated 2nd May, 1985 passed by Shri V S. Aggarwal, Addl. Sessions Judge, Delhi.
(2) Respondent No. I Babu Lal filed a complaint against the petitioner Chander Mohan Chawla and respondent No. 2 Madan Lal under section 183/457/468/471/34 Indian Penal Code on 6th October, 1981 and the same was pending before the learned Magistrate Smt. Pratibha Rani at the stage of pre-charge evidence till 20lh May, 1985. That complainant was fixed for hearing on 21st May, 1985 when neither the complaint nor his counsel was present and so the learned Magistrate dismissed the complaint and consequently discharged the petitioner and respondent No. 2
(3) COMPLAINANT/RESPONDENT No. 1 Babu Lal moved an application on 1st July, 19S5 for fie restoration of his complaint before learned Magistrate who vide impugned order dated 11th October, 1985 allowed the same and restored the complaint.
(4) The petitioner, feeling aggrieved with the aforesaid order of the learned Magistrate, went up in revision under section 397 read with section 392 of the Code, which was heard by Shri V.S. Aggarwal, Addl. Sessions Judge who dismissed the revision.
(5) The petitioner felt dissatisfied with both the aforesaid orders and has now invoked the inherent powers of the High Court under section 482 of the Code for the quashing of both these orders.
(6) The impugned order dated 21st May, 1985 of the learned Magistrate shows that she bad dismissed the complaint under section 249 of the Code and both the accused persons were discharged. The learned Magistrate in her impugned order was of the opinion that the order of dismissal of the complaint in default ofthe complainant was not a final order and so the trial court was empowered to review that order and for coming to this conclusion relied upon two judgments of this Court.
(7) In the impugned order passed by the learned Addl. Sessions Judge. the learned Addl. Sessions Judge was of the view that section 249 of the Code was not at all attracted and thus the learned Magistrate had no jurisdiction to dismiss the complaint in default and thus as there was no order of dismissal in default in the eye of law, such an order could always be set aside and/or, in other words, the complaint could well be restored by the learned Magistrate and with these observations he found no ground to interfere with the restoration order passed by the learned Magistrate and consequently dismissed the revision petition.
(8) Section 249 of the Code reads as follows : “249. Absence of complainant.-When the proceedings have been instituted upon complaint, and on any day fixed for the beaming of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, not with standing anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.”
(9) The learned Addl. Sessions Judge after noting this provision of law observed that this provision of law was not applicable as the contingencies laid down therein were not in existence and it was this very reason that he held that the existence and it was for this very reason that he held that the learned Magistrate had no jurisdiction to dismiss the complaint in default under that provision of law and that under the circumstances the order of dismissal in default was non est. This approach on the part of the learned Addl. Sessions Judge is erroenous. The order of dismissal in default passed by the learned Magistrate was simply illegal and could not be said to be without jurisdiction and thus non est and for that reason could not be ignored by her so as to set aside the same and restore the complaint. The order can be non est in the eye law only when the court passing the same has no inherent jurisdiction for doing that. But it was not a case of lack of total inherent jurisdiction as Section 249 does vest power in a Magistrate to dismiss a complaint in default, though in certain contingencies and the order of dismissal in default passed by the learned Magistrate was only a misconceived, illegal and a wrong one which ought not to have been passed by her and required setting aside.
(10) Furthermore, the view of the learned Magistrate in her impugned order that the order of dismissal was not a final order and thus could be reviewed, is also not correct in view of the Supreme Court authority reported as Bindeshwari Prasad Singh v. Kali Singh which was relied upon by the Supreme Court in the latest authority reported as Maj. Genl. A.S. Gauraya and another v. S.N.Thakur and another . The former authority laid down as follows : “………THEREis absolutely no provision in the Code of Criminal Procedure of 1898 (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 of Civil Procedure Code, the subordinate criminal courts have no inherent powers. In these circumstances, therefore, the learned Magistrate had absolutely no jurisdiction 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 the having passed the order dated November 23, 1968, the sub-divisional Magistrate became functus officio and bad 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 following upon recalling the said order, would fall to the ground including order dated 3. 1972, summoning the accused which must also be treated to a nullity and destitute of any legal effect……”
In the latter authority it was laid down as follows : “SO far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the sums ground is final order and in the absence of any specific provision in the Code, a magistrate cannot exercise any inherent jurisdiction. The magistrate cannot 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 Supreme Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar. Filing of a second complaint is not The same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Cr. PC. does not contain any provision enabling a magistrate to exercise an inherent Jurisdiction which he otherwise does not have.”
(11) In view of the aforesaid authorities of the Supreme Court as there is no provision in the Code enabling the magistrate to recall or review its own order dismissing the complain in default of the complainant and there being no inherent powers vesting in him under the Code, the impugned order of restoration passed by the learned magistrate as also the consequent dismissal of revision by the learned Addl. Sessions Judge against that order, are without jurisdiction and no further proceedings after the restoration of the complaint are competent.
(12) In view of the aforesaid discussion,the petition succeeds and the impugned orders passed by the learned magistrate and the Addl. Sessions Judge are liable to be set aside and quashed.
(13) It may be pointed out that during the pendency of this petition it was brought to my notice by the learned counsel for the parties that comp anent respondent No. 1 Babu Lal bad since died and that a necessary application had been moved before the learned trial court in that regard and the learned trial court bad fixed 3rd December, 1986 as the next date of hearing of that matter. It was, however, submitted by the learned counsel for the petitioner that this petition may be decided assuming that the complaint survived even on the death of the complainant Babu Lal and consequently arguments in this petition were heard.
(14) For the reasons aforesaid, the impugned orders are set aside and quashed.