BINDESHWARI PRASAD SINGH versus KALI SINGH

Citation: [1977] 1 S.C.R. 125 · Decided: 05-08-1976 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

' 
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 dis-
missal 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 com-
plaiht. 
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 what-
soever. 
[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 
C-
D 
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 
G 
H 
A 
B 
c 
D 
E 
F 
G 
H 
12 6 
SUPREME COURT REPORTS 
(1977] 1 S.C.R. 
parties applied for copies of these proceedings on the 20th Decem-
ber, 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 com-
plaint 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 t

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