Supreme Court of India
MAJ. GENL. A.S. GAURAYA & ANR.versusS.N. THAKUR AND ANR.
- Citation
- 1986 INSC 93
- Decided
- 25 April 1986
- Disposal
- Appeal(s) allowed
- Bench
- V KHALID
Holding
Subordinate criminal courts have no inherent jurisdiction to recall or review their own orders; only the High Court may exercise such inherent powers under Section 561 of the CrPC.
Summary
The petitioners were accused in a complaint under the Mines Act, 1952 and the Metalliferous Mines Regulation, 1961. The Judicial Magistrate dismissed the complaint for default on 6 January 1972, but later restored it on 20 January 1972 upon the complainant's application. The accused argued that the magistrate had become functus officio and lacked authority to recall his earlier dismissal order, but the magistrate claimed inherent powers under the Criminal Procedure Code. Lower courts upheld the magistrate's view, but the Supreme Court’s earlier decision in Bindeshwari Prasad Singh v. Kali Singh held that subordinate criminal courts possess no inherent jurisdiction beyond the Code. The Supreme Court affirmed that only the High Court has inherent powers under Section 561 of the CrPC, that dismissal for non‑appearance of the complainant is a final order, and that a magistrate cannot revive a dismissed complaint. Consequently, the appeal was allowed, the High Court order set aside, and the original dismissal order restored.
Issues considered
- Whether a subordinate criminal court has inherent jurisdiction to recall or review its own orders not expressly provided in the Criminal Procedure Code.
- Whether a magistrate can restore a dismissed complaint upon the complainant's application.
- Whether the Supreme Court's decision under Article 141 is binding on pending proceedings.
- Whether filing a second complaint is permissible in the circumstances.
Legislation cited
- Code of Criminal Procedure, 1973s. 151, s. 249, s. 256(1), s. 561
- Metalliferous Mines Regulation, 1961s. Regulation 106
- Mines Act, 1952s. 67, s. 72C(1)(a)
Subjects
Inherent jurisdictionSubordinate criminal courtsCriminal Procedure CodeFunctus officioArticle 141Supreme Court precedentDismissal of complaintMines ActReview of ordersRevision
Judgment
771
A
MAJ. GENL. A.S. GA!JRAYA & ANR.
Vo
S.N. TIIAKlJR AND ANR..
APRIL 25, 1986
B
[V. KHALID AND M.M. DUTT, JJ,]
~~ Cri~inal Procedure Code, 1973 - Whether subordinate
criminal Courts h&ve inherent jurisdiction outside the
provisions of the Code.
Respondent No.l, complainant, filed a complaint against c
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 D
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. E
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. F
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. G
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 H
772 SUPREME COURT REEORTS [19861 2 s.c.R.
A 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
B 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.
c
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
D 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_
E 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+
F 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
G 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
H inherent powers. In these circlllll!ltances, therefore, the
learned Magistrate had absolutely no jurisdiction to re-call
the order dismissing the complaint. [778 C-E]
MAJ, GENL. A.S. G\URAYA v. S,N, '.IHAKUR 773
A
2, (iii) Filing of a second complaint is not the same
thing as reviving a dismissed complaint after recalling the
order of dismissal. The Criminal Procedure Code does not
contain any provision enabling the Criminal Court to use such
an inherent power. A second complaint is permissible in law if
it could be brought within the limitations imposed by the B
Supreme Court in Praatha Mith Taluqdar v. Saroj Ranjan Sarkar
[1962) Suppl. 2 s.c.R. 297. [777 A-B; 776 HJ
Bindeem.ri Prasad Singh v. lrali Singh, [1977] 1 s.c.R.
125, followed.
B.D. Sethi v. V.P, De-, 1971 Delhi Law Times 162, c
over-ruled.
3. A mere reading of Article 141 brings into sharp focus
its expanse and all pervasive nature. There is nothing like
any prospective operation alone of the law laid down by the
Supreme Court. The law laid down by the Supreme Court applies D
to all pending proceedings. [780 D; 779 E]
Shenoy and Co. v. C~rcial Tax Officer, [1985] 2
s.c.c. 512, relied upon.
In the instant case, the Additional Sessions Judge E
overlooked the binding nature of the law declared by the
Supreme Court DBndating under Art. 141, every court
subordinate to this Court to accept it. The High Court could
have, if it had examined the DBtter, corrected the error into
which the Sessions Judge fell. The observations of the
Sessions Judge disclose a confusion of thOught about the F
effect of decision rendered by the Supreme Court and a
·.~ lllisreading of Article 141 of the Constitution. [779 F-G; D-E]
CRIMINAL APPELIATE JURISDICTION : Criminal Appeal No.
184 of 1979.
G
From the Judgment and Order dated the 9.8. 78 of the
Delhi High Court in Criminal Misc. No. 391 of '1978,
Raj ender Nath Sachar, D.N. Mishra, Ms. L. Goswami and
T.M. Ansari with him for the Petitioners.
H
774 SUPREME COURT REPORTS [19861 2 s.c.R.
A
V. Mahajan and c.v. Subba Rao for the Respondents.
The Judgrent of the Court was delivered by
KHALID, J. This Criminal appeal by special leave,
B involves the question
Whether a Sub-ordinate Criminal Court has any
inherent jurisdiction outside the provisions of the~
Criminal Procedure Code ? ·
c Incidentally, the scope of Article 141 of the Constitution
also comes up for consideration.
The facts of the case can be stated first. The -{-
appellants, two in number, are the accused in a complaint+
filed by the first respondent in the Court of the Judicial ·
D Magistrate, First Class, New Delhi, disclosing an offence
punishable under Section 67 and 72C(l) (a) of the Mines Act,
1952, read with Regulation 106 of the Metallifarous Mines
Regulation 1961, The learned Magistrate took the complaint on
file and issued SUlllll¥lns to the accused to appear on 6.1.1972.
On 6, 1.1972 neither the complainant nor the accused were
E present and therefore, the Magistrate passed the following~
order :
F
"Accused not present. None present for the
complainant also. The complaint is hereby dismissed
in default and for want of prosecution."
t
-
On 13.1.1972, the complainant filed an application for
restoration of the complaint. On 20.1.1972, the Magiatrate
passed the following order : ~
"I heard Shri T.S. Sodhi. The complaint be
G restored. SUlllll¥ln accused for 21/2."
On 21.2.1972, the accused petitioners iooved an application
before the Magistrate stating that the order dated 20.1.1972
was without jurisdiction since the Magistrat; had become_..
functus officio, by his order dated 6.1.1972. This application
H was rejected by the Magistrate by his order dated 8;5.1972. He
was of the view that he had inherent powers under the Code of
Criminal Procedure to review and re-call his earlier orders•
K\J, GENL. A.S. G\URA'V\ v. S,N. 'Il\AKUR [IBALID, J,] 775
Aggrieved by this order, the petitioners filed a A
~ revision before the Court of Additional Chief Judicial
Magistrate, New Delhi, wl"iich was dismissed on 6/7/1973.
This was followed by artother revisiort before the <Hgh
Court of Delhi.. The Delhi Righ Court dismissed the revisiort by
its order dated 10.1.1975, relyirtg upon art earlier decision of B
the sane Court to the effect that a criminal court had certain
""+ irtherent powers, though rtot specifically nerttioned in the
Code.
On 5.8.1976, this Court delivered its Judgnent in the
<:ase of Bindesbwarl Prasad Singh v. Kali Singh, [ 1977] 1
S.C.R. 125 holding that no criminal court had arty irtherertt c
jurisdiction, not provided for in the Criminal Procedure Code.
-t The petitioners, a rued with this decision, moved an
application before the 11!tropolitan Magistrate on 22.12.1976,
corttending that all proceedirtgs, after the dismissal of the
complairtt by order dated 6.1.1972, were without jurisdiction
in the light of the law laid dowa by this Court and requested D
the Magistrate to drop f ruther proceedings. The learned
11!tropolitan Magistrate accepted this contention and by his
order dated 16. 7, 1977 dropped the proceedings against the
,..l petitioners.
Aggrieved by this order, the respondertts filed a revision E
before the Sessiorts Judge, New Delhi. The Additional Sessions
Judge, New Delhi, to whom this case stood transferred,
reversed the decision of the Magistrate by his order dated
+ 7.1.1978 and held that : "so for as Article 141 of the
Constitution of India and the ratio of these decisions is
concerned, there cart be no dispute whatsoever. At the sane F
tine a pronouncenent as to the positiort of law irt a judicial -
decision by the Suprene Court cannot be treated as a sort ,of
legislation by the Parlianent giving retrospective effect as
to enjoin reopening of all matters which -have already becone
final and closed."
G
Aggrieved by this order the petitioners moved the Delhi
-t High Court-under Article 227 of the Constitution of India read
with Section 482 of the Code of Criminal Procedure, to quash
further proceedings, relying upon the decision of this Court
nentioned above and contending that the order of the Sessions
R
776 SUPREME COURT REPORTS [19861 2 s.c.R.
A
JuJge was wrong. This revision petition was dismissed in;..,-
limine by the High Court on 9.8.1978, observing :
"I find no sufficient reason to interfere with the
impugned order. Dismissed."
B It is against this order that this appeal has been filed.
The first question to be considered is whether they
Magistrate could have re-called his order. It cannot be
disputed that the Magistrate has powers to dismiss a complaint
and discharge the accused when the complainant is absent. In :
c Raa Prasad Maitra v. Emperor, 1928 A. I. R. - Cal. 569 a
division bench of the Calcutta High Court had to consider the --!'--
question whether the Sessions judge was justified in directing
the complaint to be sent back to the Magistrate for further-t-
enquiry when the complaint was dismissed under section 203 of
Criminal Procedure Code. Answering the question in the
D negative, it was observed :
" ...... In a case like this, where the complainant
does not choose to be present, he cannot be heard
afterwards to say that the matter should be sent
back to the Magistrate for further enquiry ... " --4
E
This Judgment indirectly recognises the power in a Magistrate
to dismiss a complaint for default. We agree with this
conclusion.
...
Section 249 of the Criminal Procedure Code enables a_,
F Magistrate to discharge the accused when the complainant is
absent and when the conditions laid down in the said section
are satisfied. Section 256( 1) of the Criminal Procedure Code
enables a Magistrate 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
G proper order. But the.question remains whether a magistate can
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 this Court
H in Pramatba Nath Taluqdar v. Saroj Ranjan Sarkar, [1962]
K\J. GENL. A.S. ~IJRAYA v. S.N. 'l'iAKUR [mALID, J.] 777
Suppl. 2 S.C.R. 297. Filing of a second complaint is not the A
saoe thing as reviving a dismissed complaint after recalling
the earlier order of dismissal. The Criminal Procedure Code
does not contain any provision enabling the criminal court to
exercise such an inherent power.
In B.D. Sethi v. V.P, Dewan, 1971 Delhi Law Tioes 162 a B
division bench of the Delhi High Court held that a Magistrate
could revive a dismissed complaint since the order dismissing
the complaint was not a Judgoent or a final order. In
paragraph 9, the Court observes as follows
;
"9, As long as the order of the Magistrate does not
amount to a Judgoent or a final order there is C·
nothing in the Code of Criminal Procedure
prohibiting the Magistrate from entertaining a
fresh application asking for the saoe relief on the
saoe facts or from re-considering that order.
During the course of the proceedings, a Magistrate
has to pass various interlocutory orders and it D
will not be correct to say that he has no
jurisdiction to re-consider them •• "
We would like to point out that this approach is wrong. What
the Court has to see is not whether the Code of Criminal
procedure contains any provision prohibiting a Magistrate from E
entertaining an application to restore a dismissed complaint,
but the task should be to find out whether the said Code
contains any provision enabling a Magistrate to exercise an
+
I
inherent jurisdiction which he otherwise does not have. It was
relying upon this decision that the Delhi High Court in this
case directed the Magistrate to re-call the order of dismissal F
of the complaint. The Delhi High Court referred to various
decisions dealing with section 367 (old code) of the Criminal
Procedure Code as to what should be the contents of a
Judgoent. In our view, the entire discussion is misplaced. So
far as the accused is concerned, dismissal of a complaint for
non-appearance of the complainant or his discharge or G
acquittal on the same ground is a final order and in the
absence of any specific provision in the Code, a Magistrate
cannot exercise any inherent jursidiction.
H
778 SUPREME COURT REPORTS [1986] 2 S.C.R.
A
For our purpose, this matter is now concluded by a
j udgnent of this Court in the case of Biodeshwari Prasad Singh ¥-
v. Kali Singh, [1977] 1 S,C.R. 125, We may usefully quote the
following passage at page 126 :
" •• ,,, •• Even if the Magistrate had any jurisdiction
B
to re-call this order, it could have been done by
another judicial order after giving reasons that he_
was satisf led that a case was made out for ~~
re-calling the order. We, however, need not dilate
on this point because there is absolutely no
provision in the Code of Criminal Procedure of 1908
c (which applies to this case) empowering a
Magistrate to review or re-call an order passed by
him, Code of Criminal Procedure doe_s contain a , 1--.
provision for inherent powers, namely, Section i-
561-A which, however, confers these powers on the
D
High Court and the High Court alone. l'nlike Section
151 of Civil Procedure Code, the subordinate
criminal courts have no inherent powers. In these
circu111Stances, therefore, the learned Magistrate
had absolutely no jurisdiction to re-call the order
dismissing the complaint. The remedy of the
E respondent was to move the Sessions Judge or .the ..,
High Court in revision. In fact, after having
passed the order dated 23,11.1968, the
Sub-divisional magistrate became functus officio
and had no power to review or re-call that order on
any ground whatsoever. In these circumstances,
therefore, the order even if there be one, +
-
F
re-calling order dismissing the complaint was
entirely without jurisdiction. This being the
position, all subsequent proceedings following upon
re-calling the said order, would fall to the ground
including order dated 3.5.1972, suunnoning the
accused which llllSt also be treated to be a nullity
G
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. -t-'
Goburdhan that the application given by him for
re-calling the order of dismissal of the complaint
H
would amount to a fresh complaint. We are,
MAJ. GENL. A.S.. GAURAYA v. S.N. THAKUR [KHALID, J.] . 779 · - .
A
however, unable to agree with this contention
because there was no fresh complaint and ic is not
well settled that a second complaint can lie only
on fresh facts or even on th~ previous facts only
if a special case is mad·e out. This has been held
B
by this Court in Pramatba Nath Taluqdar v. Saroj
Ranjan Sarkar (supra). 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." c
When the matter went before the High Court, the decision
of this Court referred above llllSt have been brought to its
notice, since the ·order by the Additional Sessions Judge
refers to it. We would have happy if the High Court had
considered the matter in sore detail especially when its D
attention was drawn to this decision instead of dismissing the
revision in limine. The observations of the Sessions Judge,
extracted above, discloses a confusion of thought about the
effect of a decision rendered by this Court and a misreading
of Article 141 of the constitution. There is nothing like any
prospective operation alone of the law laid down by this
E
Court. The law laid down by this court applies to all pending
proceedings. If the Sessions Judge had expressed his
helplessness because of the ear lier order of the High Court
binding on him.and had allowed the revision on that ground, we
could ha~e und~rstood the reasoning behind it. lie got rid of
the effect of this CouEt's Jud~nt by observing that a
F
decision by this Court cannot be treated as "a sort of legis-
lation by Parliarent" and thus overlooked the binding nature
of the law declared by this Court, mandating under Article
141, every Courts subordinate to this Court to accept it. The
High Court could have if it had examined the matter, corrected
the error into which the Sessions Judge fell.
G
The sweep of Article 141 of the Constitution, so far as
the Judgrents of this Court are concerned, care up for
consideration before this Court recently in Shenoy and Co. v.
Coim!rclal To: Officer, [1985] (2) s.c.c. 512 to which one of
Uf! was a party. It is not necessary to refer to the facts of
H
that case, in detail. Suffice it to say that the contention
780 SUPREME COURT RE!DRTS
A
that the law laid down by this Court i~ an appeal filed by the
State would not bind the other parties against whom the State¥
of Karnataka did not file appeals from a common Judgment, was
repelled by this Court in the following words:
" •••• It is, therefore, idle to contend that the law
B laid down by this Court in that Judgment would bind
only the Hansa Corporation and not the other
petitioners against whom the State of Karnataka had~.
not filed any appeal. To do so is to ignore the
binding nature of a judgment of this Court under
Article 141 of the Constitution. Article 141 reads
c as follows :
"The law declared by the Supren:e Court sha 11 be 't
binding on all courts within the territory of+-
India." A n:ere reading of this article brings into
sharp focus its expanse and is all pervasive
D nature. In cases like this, where nun:erous
petitions are disposed of by a common judgment and
only one appeal is filed, the parties to the common
judgment could very well have and should have
intervened and could have requested the Court to
hear them also. They cannot be heard to say that J.
E the decision was taken by th is Court behind their
back or profess ignorance of the fact that an
appeal had been filed by the State against the
common judgment ••••
To contend that this conclusion applies only to the *
party before this Court is to destroy the efficacy
F
and integrity of the judgment and to make the
mandate of Article 141 illusory. But setting aside
the common judgment of the High Court, the mandamus
1
issued by the High Court is rendered ineffective ,
not only in one case but in all cases."
G
Normally, when several matters are disposed of by a common
Judgoent, and the defeated party files only one appeal against
one such matter and succeeds in that matter, he would still +
be faced with the plea of finality of the Judgoent based on
res-judicata by those against whom appeals were not filed. But
this plea did not find favour with this Court in the above
H
MAJ. GENL. A.S. GAURAYA v. S.N. THAKUR [Kl!Al:.ID, J.) 781 A
I case. It was held that the Judgment rendered by this Court in
"""' one appeal, took away the finality of the colDllkln Judgment even
against those against whom appeals were not filed because of
the all pervasive operation of Article 141. B
We do not think it necessary to probe further into the
facts of this case and lengthen this Judgment, for one good
reason; this case has moved along the files of various Courts
for !IKlre than 15 years and it is high ti112 that we give it a
decent burial. In view of the law laid down by this Court in
BfndeslJwari Prasad Singb's case (supra) we set aside the order c
of the High Court, allow this appeal and restore the order of
the Magistrate, dated 6.1.1972 dismissing the complaint.
M.L.A. Appeal allowed.
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