MAJ. GENL. A.S. GAURAYA & ANR. versus S.N. THAKUR AND ANR.

Citation: [1986] 2 S.C.R. 771 · Decided: 25-04-1986 · Supreme Court of India · Bench: V. KHALID · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

771 
MAJ. GENL. A.S. GA!JRAYA & ANR. 
Vo 
S.N. TIIAKlJR AND ANR.. 
APRIL 25, 1986 
[V. KHALID AND M.M. DUTT, JJ,] 
~~ 
Cri~inal Procedure Code, 
criminal 
Courts 
h&ve 
inherent 
provisions of the Code. 
1973 -
Whether subordinate 
jurisdiction outside the 
Respondent No.l, complainant, filed a complaint against 
the appellants-accused in the 
Court 
of 
the 
Judicial 
Magistrate, First Class, 
New Delhi disclosing an offence 
-r punishable under s. 67 and 72-<:(l)(a) of the Mines Act, 1952 
read 
with 
Regulation 
106 
of 
the 
Metallifarous 
Mines 
Regulation, 1961. The Magistrate took the complaint on file 
and issued stllllllrJns to the accused to appear on 6.1.1972. 
On 
6.1.1972 neither the complainant nor the accused were present 
and, therefore, the Magistrate dismissed the complaint in 
default and for want of prosecution. The respondent filed an 
application on 13.1.1972 for restoration of the complaint and 
>-
on 20.1.72, after hearing the complainant, the Magistrate 
restored the complaint and issued summons to the accused. 
Thereafter the accused-appellants moved an application before 
the 
Magistr~e stating that the order dated 20.1.72 was 
without jurisdiction since the Magistrate had become functus 
officio by order dated 6.1. 72. The Magistrate rejected this 
4 application holding that he had inherent powers under the code 
of Criminal Procedure to review and recall his earlier orders. 
The Additional Chief Judicial Magistrate and the Delhi High 
Court dismissed the first and the second revision petition 
filed by the appellants against the order of the Magistrate. 
Pursuant to a judgment delivered by the Supreme Court on 
5th August, 1976 in the case of Bindeshwari Prasad Singh v. 
Kali Singh, [1977] l s.c.R. 
125 holding that no Criminal 
Court had any inherent jurisdiction, not provided for in the 
j-
Criminal Procedure Code, the appellants moved an application 
before 
the Metropolitan Magistrate 
contending 
t~t all 
proceedings after the dismissal of the complaint by order 
dated 6th Janµary, 1972 were without jurisdiction in the light 
A 
B 
c 
D 
E 
F 
G 
H 
A 
B 
c 
D 
E 
F 
G 
H 
772 
SUPREME COURT REEORTS 
[19861 2 s.c.R. 
of the law laid down by the Supre!IE! Court and requested the 
Magistrate 
to 
drop 
further 
proceedings. 
The 
Magistratelr 
accepted this contention and dropped the proceedings against 
the appellants-accused. Aggrieved 
by 
this 
order, 
the 
respondent filed a revision before the Additional Sessions 
Judge who reversed the decision of the Magistrate holding that 
a pronounce!IE!nt as to the position of law in a judicial 
decision by the Supre!IE! Court cannot be treated as a sort of 
legislation by Parlialllmt giving retrospective effect as to 
enjoin re-appointing of all DBtters which have already beco~ 
final and closed. Thereupon, the appellants filed a writ 
petition before the Righ Court and the sa!IE! was dismissed in 
limine. Renee this appeal by special leave. 
Allowing the appeal. 
REID: 1. In view of the law laid down by Supre!IE! Courq-
in Bindeshwri Prasad Singh v. Kall Singh, [1977] 1 S.C.R. 
125, the order of the Righ Court is set aside and that of the 
Magistrate dated 6.1. 77 dismissing the complaint is restored. 
[781 CJ 
2. {i) Section 249 of the Criminal Procedure Code enables 
a OBgistrate to discharge the accused when the co~lainant is 
absent and when the conditions laid down in the said section,l_ 
are satisfied. Section 256(1) of the Criminal Procedure Code 
enables a DBgistrate to acquit the accused if the complainant 
does not appear. Thus, the order of dismissal of a complaint 
by a criminal court due to the absence of a complainant is a 
proper order. Therefore, so far as the accused is concerned, 
dismissal of a complaint for non-appearance of the complainant+ 
or his discharge or acquittal on the sa!IE! ground is a final 
order and in the absence of any specific provision in the 
Code, a Magistrate cannot exercise any inherent jurisdiction. -f.-v 
[776 E-F; 777 G-R] 
2. (ii) There is absolutely no provision in the Code of 
Criminal Procedure of 1908 empowering a Magistrate to review 
or recall an order passed by him. Code of Criminal Procedure 
does contain a provision for inherent powers, na!IE!ly, Section 
561...,\ which, however, confers these powers on the High Court-t 
and the High Court alone. 
Unlike 
Section 151 of Civil 
Procedure Code, 
the subordinate criminal courts have no 
inherent 
powers. 
In these 
circlllll!ltances, 
t

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