# ' BINDESHW ARI PRASAD SINGH v. KALI SINGH

- **Citation:** [1977] 1 S.C.R. 125
- **Court:** Supreme Court of India
- **Decided:** 1976-08-05
- **Case number:** Criminal Revision No. 1046 of 1972
- **Bench:** P. N. Bhagwati, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bindeshw-ari-prasad-singh-v-kali-singh-6895
- **Pages:** 3

## Headnote

12.5
Code of Criminal Procedure 1908-Whether Magistrate has jurisdiction
to
recall dismissal order made u/s 203-Application for recalling dismissal order,
whether amdunts to fresh comp/11int.
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~ts, and was ultimately dismissed under section
203
Cr.P.C. Thereafter on ah 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 Magistrate 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 complaiht.
Allowing the appeal, this Court,
HELD : ( 1) There
i~ absolutely no provisioh in the Code of Criminal
Procedure of 1908 (which applies to this case) empowering a Magistrate to
review or recall an order pai;sed 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-Divis.ional Magistrate became functus
ofjicid and bad no power to review .or recall that order on any ground whatsoever.
[126 G-H; 127 Al
(2) There was no fresbi complaint and it is now well settled that a1 second
complaint can be only on fresh facts or even on the previous facts only if a
special case is made out. [127 C-Dl
Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, [1962] (2) S.C.R. Supp.
297, followed.
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CD
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## Text

'
BINDESHW ARI PRASAD SINGH
v.
KALI SINGH
August 5, 1976
[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.]
12.5
Code of Criminal Procedure 1908-Whether Magistrate has jurisdiction
to
recall dismissal order made u/s 203-Application for recalling dismissal order,
whether amdunts to fresh comp/11int.
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~ts, and was ultimately dismissed under section
203
Cr.P.C. Thereafter on ah 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 Magistrate 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 complaiht.
Allowing the appeal, this Court,
HELD : ( 1) There
i~ absolutely no provisioh in the Code of Criminal
Procedure of 1908 (which applies to this case) empowering a Magistrate to
review or recall an order pai;sed 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-Divis.ional Magistrate became functus
ofjicid and bad no power to review .or recall that order on any ground whatsoever.
[126 G-H; 127 Al
(2) There was no fresbi complaint and it is now well settled that a1 second
complaint can be only on fresh facts or even on the previous facts only if a
special case is made out. [127 C-Dl
Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, [1962] (2) S.C.R. Supp.
297, followed.
A
B
CD
E
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 74
cll~~
F
Appeal by Special Leave from the Judgment and Order dated
28-7-75 of the Patna High Court in Criminal Revision 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 Au, 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 complaint 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
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12 6
SUPREME COURT REPORTS
(1977] 1 S.C.R.
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, however, that
the Magistrate tossed the complaint from one Magistrate ta 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.
Ultimately, on the 23rd November, 1968 the complaint was dismissed 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 application 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
December, 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 jurisdiction 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 I1ad 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
.
r
BINDESHWARI PD. v. KALI SINGH (Fazal Ali, .T.)
127
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 having
passed the order dated 23-ll-i968, 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 following 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 v. Saroj Ranjan Sarkar(!).
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.
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(!) [1962r2 Supp. S.C.R. 297.
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