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Bishnu Prasad Sharma Vs. Kharga Singh Rai and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSikkim High Court
Decided On
Judge
Reported in1983CriLJ1909
AppellantBishnu Prasad Sharma
RespondentKharga Singh Rai and anr.
Cases ReferredPampapathy v. State of Mysore (supra). But
Excerpt:
.....survived passing of the code. this express recognition and saving of the inherent powers of the high courts only by inserting section 561a in 1923 in the code of 1898 and reproduction thereof in section 482 in the new code of criminal procedure of 1973, generated a good deal of debate as to whether the legislature by expressly saving the inherent powers of the high courts only, had or has taken away or abrogated the inherent powers of the subordinate criminal courts, even if they had them before. the law commission in fact recommended in its 41st report in 1969 vol. as the order of revival of the complaint dismissed under section 203 could not be sustained in any view of the matter, and even treating the application for revival as a fresh complaint, as there was no fresh cognizance..........30 at 32 : 1921 22 cri lj 213 at p. 216. a con-trary view was, however, expressed by some other high courts e. g., by the bombay high court in sidramaya v. emperor air 1918 bom 241 : 1918 19 cri lj 97, by the allahabad high court in c. dunn v. emperor air 1922 all 107 : 1922 23 cri lj 349, but it may be noted that these decisions, to the extent they doubted or denied the existence of such inherent powers in the high courts also have been overruled by the supreme court in raghubir saran v. state of bihar air 1964 sc 1 1964 1 cri lj 1. be that as it may because of these decisions expressing doubts as to the existence of inherent powers even in the high courts, section 561a was inserted in 1923 in the code of criminal procedure, 1898, 'to clarify the position that the provisions of the.....
Judgment:
ORDER

A.M. Bhattacharjee, Actg. C.J.

1. The learned Judicial Magistrate, on receipt of the complaint on transfer from the District. Magistrate on 20-11-1979 thought it fit to postpone issue of process and to inquire into the case himself under Section 202 of the Code of Criminal Procedure and, after taking about 16 months to make such inquiry, ultimately dismissed the complaint on 25-3-1981 under Section 203 of the Code, finding no sufficient materials to proceed further On an application filed by the complainant praying for revival of the case, the learned Magistrate registered the same as,a separate Misc. Case on 23-7-1981, issued notice on the accused-opposite party and on the appearance of the latter, handed over a copy of the application to him for filing objection, if any, and on receipt of his written reply on 18-3-1982, heard the parties on 26-4-1982 and finding that 'the O. P. has no objection to the application' ordered that 'the dismissed case stands accordingly revived and the dismissed case, therefore, stood revived about 13 months after the same was dismissed. And then, after proceeding with the revived complaint for about 7 months, the learned Magistrate found that 'this case was restored through inadvertence' and ordered that 'further proceedings thus stand closed'. The complainant, having felt aggrieved with this fate of his complaint after a long lapse of about 3 years has moved this Court in revision. I, very much regret that it took the learned Magistrate about 16 months to decide that there was no case for issuance of process and to dismiss the complaint and then another period of about 13 months to revive the dismissed complaint and thereafter again a period of about 7 months to realise that the revival was wrong, and an examination of the records of the Magistrate has convinced me that with a little more care,and concern the learned Magistrate could have effected a much earlier termination of the proceedings in his Court. But such unhappy handling of the case notwithstanding, I am afraid that it will not be possible for me to intervene in the exercise of revisional jurisdiction in this case and the revisional application will have to be dismissed.

2. A dismissal of a complaint under Section 203, Code of Criminal Procedure does not bar a fresh complaint. No judicial authority is necessary for this proposition as the statutory authority therefor is provided in the Explanation to Section 403 of the Code of Criminal Procedure, 1898, that-being the Code still applying in Sikkim. While Section 403, incorporating inter alia the principle of autre fois acquit provides that a person who has once been tried by a Court of competent jurisdiction for an offence and acquitted of such offence shall, while such acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which he might have been charged or convicted, the Explanation added thereto clearly provides that 'the dismissal of a complaint is not acquittal for the purpose of this Section'. That would have been the position even without the Explanation as the Section bars a fresh trial only when a person has once been tried, while a complaint is dismissed under Section 203 before the commencement of any trial which can only begin after the process is issued and the accused appears. A fresh complaint after the dismissal of an earlier one under Section 203 cannot also obviously attract the bar under Article 20(2) of the Constitution, which embodies the principle nemo bis vexari and prohibits prosecution and punishment of a person for the same offence more than once, because when a complaint is dismissed under Section 203 of the Code of Criminal Procedure before the issuance of any process, none is prosecuted or punished thereby. In fact there is a myriad of precedents for the view that the dismissal of a complaint under Section 203 does not, as it, in view of the provisions of Section 403,and the Explanation thereto, cannot, bar a fresh complaint on the same facts but some of them, for example, the seven-Judge Bench decision of the Calcutta High Court in Dwarka Nath v. Beni Madhave 1901 ILR 28 Cal 652 followed by the five-Judge Bench decision of the same High Court in Mir Ahwad Hossein v. Mohammad Askari 1902 ILR 29 Cal 726 and the much later three-Judge Bench decision of that Court in Saurendra Mohan v. Saroj Ranjan : AIR1961Cal461 ruled that the exercise of such right was to be restricted to cases in which fresh evidence was forthcoming. The Calcutta Full Bench in Saurendra Mohan (supra at 470-471 however, ruled further that there was no reason to restrict such fresh evidence only to those facts which could not with reasonable diligence have been brought forward in the previous proceedings and that there was no justification in importing the provisions of Order XLVII, Rule 1 of the Civil Procedure Code whereunder 'discovery of new matter or evidence' would entitle a person aggrieved to apply for a review of a decree or order only when such matter or evidence, 'after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made.' In the Supreme Court decision in Pramatha Nath v. Saroj Ranjan : AIR1962SC876 , which reversed the Calcutta Full Bench decision in Saurendra Mohan v Saroj Ranjan supra it was, however, observed at 899 by Kapur J., speaking for the majority, that 'an order of dismissal under Section 203 Cr. P.C. is. however no bar to the entertainment of a second complaint on the same facts; but it will be entertained only in exceptional circumstances e. g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or if was manifestly absurd, unjust or foolish, or where new facts, which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced and that 'it cannot be said to be in the interest of justice that after a decision has been given against the-complaint upon a full consideration of his c,ase, he or any other person should be given any other opportunity to have his complaint enquired into'. Therefore, though the lex scripta enacted by the Legislature does not appear to bar a fresh complaint when the earlier one has been dismissed under Section 203, the Judicial dicta of our apex Court would bar it except in exceptional circumstances and some such circumstances which have been mentioned are- (1) where the previous order was passed (a) on an incomplete record, or (b) on a misunderstanding of the nature of the complaint, or (2) when it was manifestly absurd, unjust or foolish, or (3) where new facts have been adduced which could not, with reasonable diligence, have been brought on the record in the previous proceedings. These are obviously illustrative and not exhaustive and there may be other circumstances also to justify entertainment of a fresh complaint, but the circumstances, as ruled by the Supreme Court in Pramatha Nath v Saroj Ranjan 1962 1 Cri LJ 770 (supra) must, however, be exceptional. But, as already noted, the learned Magistrate in this case revived the complaint, though earlier dismissed by him on a full consideration of the materials before him, simply and solely on the ground that the party against whom the complaint was lodged signified his no objection thereto. This circumstance was by no means exceptional, and rather, the learned Magistrate himself adopted an exceptional and exceptionable course in restoring or reviving a dismissed complaint on the sole ground that the party against whom it was lodged but against whom the Magistrate himself found no reason to issue process appeared on receipt of the notice of the application for revival and did not object to the revival as prayed for. This by itself can never be a ground to justify revival or restoration of a complaint dismissed Under Section 203 of the Code even if the learned Magistrate had otherwise the power to effect such revival or restoration under the law.

3. Referring to and relying on Pramatha Nath v. Saroj Ranjan 1962 1 Cri LJ 770 supra the Supreme Court in Bindeshwari Prasad Singh v. Kali Singh : 1978CriLJ187 has observed that 'it is now well-settled that the second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out' and pointed out that in that case before the Supreme Court 'there was no fresh complaint'. The expression 'second complaint' in Pramatha Nath supra or the expressions 'fresh complaint' or 'second complaint' in Bindeshwari Prasad (supra) should not, however, be construed to mean that the petition of complaint, which has been dismissed, can no longer be of any avail and a new one has got to be lodged because the Code of Criminal Procedure, which defines a 'complaint' in Section 4 (h), does not require a petition in writing and all that should be necessary is a fresh cognizance only, and not that the complainant has got to re-write or re-make a fresh or a second copy of the earlier complaint or to draft a new one, as pointed out by a Division Bench of the Madras High Court in Mappillasisami v. Muthuswami AIR 1949 Mad 76 : 1948 49 Cri LJ 587. Once 'a special case is made out' for fresh cognizance and cognizance is taken, it would not matter whether the earlier copy of the complaint or a new or a redrafted copy has been made the foundation for such cognizance and it would be equally immaterial whether the same is labelled as a revived complaint or a second complaint. But unless such a special case is made out for fresh cognizance and cognizance is taken afresh, the earlier complaint must be taken to have died beyond all possibilities of resuscitation or resurrection.

4. Mr. N.B. Kharga the learned Public Prosecutor, has relied very strongly on the aforesaid Supreme Court decision in Bindeshwari Prasad 1978 Cri LJ 187 supra not only for the proposition that once a complaint is dismissed under Section 203, everything connected therewith comes to an eternal end unless the order of dismissal is set aside by a higher Court, or a fresh complaint is made on a special case being made out to that effect, but he has also urged that the said decision is now a sealer on the point that so far the inherent powers of the criminal Courts are concerned 'Section 561A.confers these powers on the High Court and the High Court alone' and that 'unlike Section 151 of the Code of Civil Procedure, the Subordinate Criminal Courts have no inherent powers'. Mr. Kharga has accordingly urged that as there was no fresh complaint, or at least, no fresh cognizance after the earlier complaint was dismissed, the revival or restoration of the dismissed complaint by the Judicial Magistrate could not be sustained as having been done in exercise of inherent powers and such restoration thus being wrong, the subsequent order of the Judicial Magistrate dropping or closing the proceedings was perfectly right as having righted the wrong.

5. About 40 years before Section 151 of the Code of Civil Procedure was enacted in 1908 declaring that 'nothing in this Code shall -be deemed to limit or otherwise affect the inherent power of the Court to m,ake such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court', it was declared by Chief Justice Sir Barnes Peacock, relying on a passage from Domat's Civil Law (Chapter XII, Section 17), in the Full Bench decision of the Calcutta High Court in Hurro Chunder Roy Chowdhry v. Shoorodhonee Debia 1868 9 Suth WR 402 at 406 end w,as thereafter repeatedly affirmed in a series of cases e. g., Hukum Chand Boid v. Kamalananda Singh, 1905 ILR 33 Cal 927 at 931, 932, 940, 941, that the Courts had to act and had acted in many cases, where the circumstances require it, upon the assumption of the possession of an inherent power to act ex debito justitiae and to do that real and substantial justice for the administration for which it, alone exists, even though the Codes of Civil Procedure operating at the relevant time did not contain any provision analogous to Section 151 of the present Code. In Nanda Kishore Singh v. Ram Golam Sahu 1913 ILR 40 Cal 955, decided in 1912 after the present Code 0f Civil Procedure, 1908, was enacted with its Section 151, Sir Ashutosh Mookerjee who also delivered a separate but concurring judgment in Hukumchand Boid's case supra observed at 959 that 'Section 151 of the Code does not lay down any new principle but merely declares that the Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court'. The same position has been accepted and the same principle has been reiterated by the Supreme Court also and reference in this connection may be made to the decision of the Supreme Court in Manohar Lal v. Seth Hiralal : AIR1962SC527 where it has been observed at 534 that 'the inherent power has not been conferred upon the Court it is a power inherent in the Court by virtue of its duty to do justice between the parties before it'. In Civil Jurisdiction, therefore the accepted position appears to be that the inherent powers inhere in Courts spontaneously as automatic parts of their very existence and as inalienable attributes of their judicial functions, even without any legislative recognition or declaration to that effect and that is why long before the present Code of Civil Procedure of 1908 was enacted with such declaration or recognition in Section 15l thereof, the Courts did not find any difficulty to find such powers in themselves and to exercise them whenever necessary.

6. In our criminal jurisdiction, however, the position appears to have been somewhat different. There was no provision analogous to Section 151 of the Code of Civil Procedure in any of the Codes of Criminal Procedure until Section 561 A was inserted in 1923 in the Code of 1898. One would have thought that all Criminal Courts, dealing with proceedings involving and likely to affect lives and liberties of persons, would have more readily found inherent powers to be inhering in them and to to be at their disposal to do that real and substantial justice for which alone all Courts, and no less the Criminal Courts exist. As was observed by Sir Ashutosh Mooker-jee in Pulin Behari Das v. King Emperor 1912 16 Cal WN 1105 at 1136, decided as early as in 1911 Criminal Courts no less than Civil Courts, exist for the administration of justice and Courts of both descriptions have inherent powers to mould the procedure, subject to the statutory provisions applicable to the matter in hand to enable them to discharge their functions of Courts of Justice'. Later, in Budhu Lal v. Chattu Gope AIR 1918 Cal 850 : (1917) 18 Cri LJ 497 his Lordship after referring to those observations in Pulin Behari Das supra observed further at 857 that 'the Criminal Procedure Code does not contain a provision corresponding to Section 151, Civil Procedure Code but that section does not lay down any new principle; it merely embodies a legisla-lative recognition of the inherent power of the Court to make such orders as may be necessary for the ends of justice and that 'this inherent power is in no sense restricted in application to civil cases; it is equally applicable to criminal matters'. And these observations were affirmed by his Lordship, while speaking for the Pull Bench in Pigot v.All Muhammad Mandal AIR 1921 Cal 30 at 32 : 1921 22 Cri LJ 213 at p. 216. A con-trary view was, however, expressed by some other High Courts e. g., by the Bombay High Court in Sidramaya v. Emperor AIR 1918 Bom 241 : 1918 19 Cri LJ 97, by the Allahabad High Court in C. Dunn v. Emperor AIR 1922 All 107 : 1922 23 Cri LJ 349, but it may be noted that these decisions, to the extent they doubted or denied the existence of such inherent powers in the High Courts also have been overruled by the Supreme Court in Raghubir Saran v. State of Bihar AIR 1964 SC 1 1964 1 Cri LJ 1. Be that as it may because of these decisions expressing doubts as to the existence of inherent powers even in the High Courts, Section 561A was inserted in 1923 in the Code of Criminal Procedure, 1898, 'to clarify the position that the provisions of the Code were not intended to limit or otherwise affect the Talab Haji Hussain v. Madhukar Purshottam Mondkar : 1958CriLJ701 But even about this Section 561A the Privy Council in Emperor v. Nazir Ahmad AIR 1945 PC 18 at 22 : 1945-46 Cri LJ 413 at p. 417 and Jairam Das v. Emperor AIR 1945 PC 94 at 98 : (1945) 46 Cri LJ 662 at p. 666 had taken the view that the said section gives no new powers but only provides that those which the Court already inherently possessed shall be preserved. The Supreme Court in the State of U.P. v. Mohd. Nairn : [1964]2SCR363 has relied on these Privy Council decisions and adopting the observations made therein, has observed at 705, 706 : at pp. 551, 552 that 'it is now well-settled that the Section confers no new powers on the High Court' but 'merely safeguards all existing inherent powers possessed by the High Court necessary among other purposes to secure the ends of justice' and 'provides that those powers which the Court inherently possesses shall be preserved lest it be considered that the only power possessed by the Court are those expressly conferred by the Code and that no inherent powers had survived passing of the Code. This express recognition and saving of the inherent powers of the High Courts only by inserting Section 561A in 1923 in the Code of 1898 and reproduction thereof in Section 482 in the new Code of Criminal Procedure of 1973, generated a good deal of debate as to whether the Legislature by expressly saving the inherent powers of the High Courts only, had or has taken away or abrogated the inherent powers of the Subordinate Criminal Courts, even if they had them before.

7. As noted by the Law Commission of India in its 14th Report (Vol. I, page 829), quoted again in its 41st Report (Vol. I page 359), though 'this statutory recognition extends only to the inherent powers of the High Court', yet 'in a number of decisions before and after the enactment of Section 561A, various High Courts have also recognized the existence of such power in Subordinate Courts'. Reference for such instance may be made, among others, to the Full Bench decision of the Punjab & Haryana High Court in State v. Mehar Singh 1974 Cri LJ 970, where it has been observed at 986 that though Section 561A expressly preserves the inherent powers of the High Courts only, such powers cannot on principle be said to be lacking in Subordinate Courts, they, having been charged with the duty of administering justice and possessed as a matter of right, all those powers which are necessary for the due performance of this duty. The Law Commission in fact recommended in its 41st Report in 1969 Vol. I, pages 359-360, 371 that 'the Section 561A which recognises the 'inherent power of the High Court should be expanded to cover the inherent power of the other Criminal Courts to prevent abuse of their process or to sequre the ends of justice'. But the recommendation has not been accepted and Section 482 of the Code of 1973 has substantially reproduced the provisions of Section 561A by recognising the inherent powers of the High Court only. Non-acceptance of the recommendation of the Law Commission to the effect that there should be statutory recognition of the inherent powers of the Subordinate Criminal Courts also and express recognition of the inherent powers of the High Courts only in Section 482 of the new Code of 1973, in spite of numerous decisions of the High Courts recognising such inherent powers of the Subordinate Criminal Courts also, even though Section 561A referred to High Courts only may not that must be taken to have lent assurance to the view that the Legislature was, rightly or wrongly, in no mood to recognise the inherent powers of the Subordinate Criminal Courts and that express mention of the High Courts only has excluded the other Criminal Courts from the legislative protection of their inherent powers.

8. I am not aware of any decision of the Supreme Court directly dealing with this question except the two-Judge Bench decision in Bindeshwari Prasad Singh : 1978CriLJ187 (supra), already noted hereinbefore, ruling out (at 2433) all inherent powers in the Subordinate Criminal Courts. In an earlier three-Judge Bench decision of the Supreme Court in Pampapathy v. State of Mysore : 1967CriLJ287 , the question which arose for consideration related to the inherent powers of the High_C.ourt only, but a broad observation therein at 289 to the effect that 'no legislative enactment dealing with the procedure can provide for all cases that can possibly arise and it is an established principle that the Courts should have inherent powers, apart from the express provision of law, which are necessary to their existence and for the proper discharge of the duties imposed upon them by law', may le,ad one to think that there should be no reason for ' the Subordinate Criminal Courts, which if not more frequently, are, at least no less, concerned with the administration of criminal justice, to be devoid of all inherent powers In Jaipur Mineral Development Syndicate v. Commr. of Income Tax : [1977]106ITR653(SC) the Supreme Court, while considering the question of the inherent powers of the High Court to rehear a reference under Section 66, Income-tax Act, 1922 dismissed for non-appearance of the party, observed at 1350 that 'the Courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the Court' and that 'to hold otherwise would result in quite a number of cases in gross miscarriage of justice'. If it were required to decide in this case as to whether Subordinate Criminal Courts have or do not have any inherent powers, it would have been necessary for me to ascertain whether the view in the two-Judge Bench decision in Bindeshwari Prasad Singh (supra), declaring non-existence of any inherent powers in the Subordinate Criminal Courts, is contrary to the view of any other earlier or later larger Bench of the Supreme Court, including the Decision in Pampapathy v. State of Mysore (supra). But as in the case at hand, the revival of the complaint, dismissed under Section 203, simply and solely on the ground that the accused-opposite party, on receipt of the notice of the application for revival, appeared and did not object to such revival could not be supported even assuming that the Subordinate Criminal Courts have inherent powers to effect such revival the question need not be pursued any further. As the order of revival of the complaint dismissed under Section 203 could not be sustained in any view of the matter, and even treating the application for revival as a fresh complaint, as there was no fresh cognizance and no special case was made out or any exceptional circumstance shown for such fresh complaint as required by the decisions of the Supreme Court in Pramatha Nath supra or Bindeshwari Prasad supra the subsequent order of the Magistrate righting his own wrong by dropping or closing the proceeding was obviously a right order though it would have been much better if the learned Magistrate realised the position much earlier without dragging the revived complaint for about seven months.

9. One word more before I conclude. During the course of arguments Mr. Kharga also raised the question as to whether or not the order of revival or restoration of the complaint by the Magistrate was also ultra vires the provisions of Section 369 of the Code of Criminal Procedure. Section 369 provides that 'save as otherwise provided by this Code or by any other law for the time being in force ' no Court when it has signed its judgment shall alter or review the same except to correct a clerical error'. The Section having prohibited alteration or review only of a 'judgment' pronounced and signed and with expression 'judgment' having been construed in a number of cases to include a 'final order' also, it was ruled by the High Courts that any other order, not amounting to 'judgment' or 'final order' could be altered or reviewed. Applying the principle enshrined in the maxim 'ex-pressio unius est exclusio alterius' it was held in those cases that since only a 'judgment' is expressly mentioned in the Section and that expression has been construed to include a 'final order' also all other orders, not amounting to a 'judgment' or a 'final order' are excluded from the prohibition imposed by the Section 369 and are, therefore, open to review and alteration. These cases, in effect, accept the celebrated dictum of Mahmood, J., in his dissenting judgment in the century-old Allahabad Full Bench decision in Narsingh Das v. M,angal Dubey 1883 ILR 5 All 163 at 172, to the effect that 'the Courts are not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law'. But exercise of any power on the principle that 'anything not expressly prohibited must be held to be permitted, is, in effect, an exercise of inherent powers of the Court and if the law is, as ruled by the Supreme Court in Bindeshwari Prasad Singh, 1978 Cri LJ 137 at 2433 supra that the 'Subordinate Criminal Courts have no inherent powers', then they cannot exercise any power not expressly conferred on them by the provisions of the Code or any other statutory law and there being no express provision in the Code or any other relevant statute permitting review of any interlocutory order by the Subordinate Criminal Courts, such power has to be taken to be non est. That explains why the Supreme Court in Bindeshwari Prasad Singh supra at 2433 has declared that 'there is absolutely no provision in the Code of Criminal Procedure of 1898. empowering a Magistrate to review or recall an order passed by him'. It may be that such a divestiture of the rights of all the Subordinate Criminal Courts to exercise inherent powers, which were regarded to be the inalienable parts of their existence may operate to prevent them 'to do that real and substantial justice for the administration of which they alone exist' But as I have pointed out earlier, it is not necessary for me to ascertain whether this view of the two Judge Bench of the Supreme Court in Bindeshwari Prasad Singh supra is or is not reconcilable with its view in the earlier decisions; for, even assuming that the Subordinate Criminal Courts do have power to review its earlier order, the learned Judicial Magistrate in the case at hand could not review his earlier order of dismissal of the complaint and restore the dismissed complaint simply and solely on the ground that the opposite party, against whom the dismissed complaint was lodged, appeared on receipt of the notice of the application for review or revival,and did not object to its restoration.

10. The revision is, therefore, dismissed as the final order of the Magistrate dropping the revived complaint and closing the proceeding was perfectly right, though the manner in which the entire proceeding was conducted has left much to be desired.


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