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1996 SCC OnLine AP 994 : (1997) 3 ALD 134 : (1997) 2 AP LJ (SN) 28 : 1997
Cri LJ 3597

In the High Court of Judicature of Andhra Pradesh at Hyderabad

(BEFORE A.S. BHATE, J.)

R.S. Sundara Raju

Versus
Sri Tirumala Finance and Investments, Kakinada and Anr.
Crl. R.C. No. 849 of 1996 and Crl. R.P. No. 845 of 1996
Decided on December 23, 1996
ORDER
1. A short but not unimportant point arises for determination in the case. The point
involved is as to whether a complaint which is dismissed under Section 256 Cr. P.C. on
a totally wrong premise by the Court of learned III Additional Judicial Magistrate of
First Class, Kakinada can be revived for hearing further.
2. The facts of the case may be stated first in detail. It is the facts of the case that
have bearing in the instant case because the legal position otherwise is completely
settled one that the Subordinate Criminal Courts do not have any inherent power, nor
can they review their own orders. This position, as rightly pointed out by the learned
Counsel for the petitioner, has been settled, as long as back in 1977 by the decision of
Supreme Court in Bindeswari Prasad Singh v. Kalisingh (1) (1977) 1 SCC 57. The
same principle was approved in A.S. Gauraya v. S.N. Thakur (2) (1986) 2 SCC 709 :
AIR 1986 SC 1440. I shall refer to the precise principle laid down a bit later after
stating the facts. Respondent No. 1 had initiated a criminal case against the petitioner
by instituting C.C. No. 460 of 1995 for offence under Section 138 of the Negotiable
Instruments Act (hereinafter referred to as

Page: 136

‘the Act’). The complaint was filed before the learned III Additional Judicial Magistrate
of First Class, Kakinada. The cognizance of the offence was taken by the learned
Magistrate. The petitioner was summoned to appear as an accused before the said
Court. The complaint was presented on 15-12-1995. When the matter came up before
the Court for hearing on 30-9-1996, the learned Magistrate passed the following order:

“Complainant absent and no representation on his behalf. Accused absent. Petition

filed under Section 317 Cr. P.C. is allowed. Hence complaint is dismissed under
Section 256 Cr. P.C.”
3. After signing the order immediately thereafter, the learned Court found that in
fact the complainant was very much present there and passed the order as follows:
“Since complainant is present, the above order is restored and suo motu for trial,
posted to 17-10-1996.”
4. The contention of the petitioner is that once the learned Magistrate dismissed the
complaint under Section 256 Cr. P.C. he became functus officio. He could not review
the order directing further hearing and the order of acquittal had become final. The
only ground by which it could be set aside was by preferring an appeal by the
complainant. The order restoring the case for further hearing is bad in law and
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therefore, the said order should be set aside.

5. The learned Counsel for the petitioner contends that when the Court rightly or
wrongly passes order, exercising the powers under Section 256 Cr. P.C. the order
becomes final and the Court has no jurisdiction whatsoever to reconsider or review the
said order. The order of acquittal could only be challenged by filing an appeal by the
complainant. He contends that even if the order is passed under any mistaken notion
still then the order is final and it cannot be revived. He contends that Section 482 Cr.
P.C. clearly recognizes the inherent powers of the High Court only, and not of
Subordinate Courts. He relies naturally on the two Supreme Court cases referred
above. He also relies on a decision in Ekambara Mudali v. Alamelammal (3) AIR 1930
Madras 1001.
6. In Bindeswari Prasad Singh's case (1 supra) the facts were that a complaint was
filed before a Sub-Divisional Magistrate for certain trivial offences. The said complaint
was initiated on 21-2-1966. It was tossed from one Magistrate to another. Ultimately
on 23-11-1968 the complaint was dismissed for default by invoking Section 203 Cr.
P.C. on the ground that complainant was absent. On December 7, 1968 the
complainant appeared before the learned Magistrate and filed an application for
recalling the order of dismissal passed 14 days back. The Magistrate then did not pass
any orders but sent the case for enquiry to some other Magistrate. A report in the said
enquiry was made and on December 9, 1970, the Magistrate recalled the enquiry from
the Magistrate to whom it was given. He gave the enquiry to some other Magistrate
and ultimately the impugned order was passed by the Magistrate on 3-5-1972
restoring the dismissed complaint and issuing the process against the accused. It was
this order dated 3-5-1972 which was challenged. The challenge reached upto the
Supreme Court as the challenge had failed in the lower Courts. It was in this
background that the Supreme Court observed that the order dated November 23,
1968 was a judicial order by which the Magistrate had given the reasons for dismissing
the complaint and, as there was no provision in the Code of Criminal Procedure
empowering the Magistrate to review or recall the order passed by him, the impugned
order was totally bad in law. The Court also observed that Section 561-A (of the old
Criminal Procedure Code, 1898), confers inherent powers on the High Court and the
High Court alone. Unlike Section 151 Cr. P.C., the Subordinate Criminal Courts have no
inherent powers. It was on this set of facts or background that the Supreme Court
observed as follows:

Page: 137

“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 November 23, 1968, the
Sub-Divisional Magistrate became functus-officio and had no power to review or
recall the 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.”
7. Later in A.S. Gauraya's case (2 supra), a similar point came up for decision. The
Supreme Court approved the principle laid down in Bindeswari Prasad Singh's case (1
supra). In this case also the complaint was dismissed as the complainant was absent.
The Supreme Court observed while referring to the provisions of Criminal Procedure
Code of 1898 that Section 249 Cr. P.C. enables a Magistrate to discharge the accused,
when the complainant is absent and when the conditions laid down in the said section
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are satisfied (underlined to give emphasis). The Court further observed that Section
256(1) Cr. P.C. enables a Magistrate to acquit the accused if the complainant does not
appear.
(underlined to give emphasis).
8. The Court next observed as follows:
“But the question remains whether a Magistrate 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 or
revive it.”
9. The Court also observed:
“The Criminal Procedure Code does not contain any provision enabling the Criminal
Court to exercise such an inherent power.”
10. Again the facts of this case require attention. A criminal case was filed against
the accused before the learned Judicial Magistrate of First Class, New Delhi disclosing
certain offences. A cognizance was taken by the learned Magistrate and summons was
issued for appearance of the accused on 6-1-1972. However, on 6-1-1972 neither the
complainant nor the accused were present and the Magistrate passed order as follows:
“Accused not present. None present for the complainant also. The complaint is
hereby dismissed for default and for want of prosecution.”
11. Thereafter on 13-1-1972, the complainant filed an application for restoration of
the complaint. On 20-1-1972, the Magistrate passed the following order:
“I heard Sri T.S. Sodhi. The complaint be restored. Summon issued for 21-2-1972.”
12. That is how the complaint was restored. It will thus be seen that in both the
cases the complaint was dismissed. On the ground of absence of complainant. That
was a perfectly legal and valid order. The observations referred above, in A.S.
Gauraya's case (2 supra) by the Supreme Court as per the underlined portion, it is
clear that the provisions of Criminal Procedure Code enable a Magistrate to acquit the
accused, if and only if the complainant does not appear. Thus the Magistrate gets
jurisdiction and power to dismiss the complaint only if the complainant is in fact
absent. However, if factually the Magistrate has made a blunder by recording the
absence of the complainant though in fact the complainant is very much present, the
dismissal of the complaint on the erroneous presumption that complainant is absent
would be a totally invalid order and it would be bad ab initio. It would not be an order
having any force. It would be a non est order. Such order, as is well known can always
be ignored. It is not necessary that the aggrieved party should challenge the said
order in a superior Court. Non est orders are those orders which can be ignored
altogether. If the learned Magistrate has for some reason or the other made a mistake
of fact in recording the order and without any loss of

Page: 138

time has immediately corrected himself by ignoring the non est order, I do not think
that he has committed-any error or has violated the principle laid down in the
Supreme Court cases referred above. The principle that the Magistrate cannot revive or
restore the case once dismissed, applies only when the complainant is in fact absent.
It will not be a ground to say that the complainant could not appear in the Court for
reasons beyond his control and the complainant cannot ask for restoration of the case
on such a ground. For example if the complainant on his way to Court is held up by
some agitation just outside the gate of the Court and is unable to attend the Court
room due to reasons beyond his control and, if his absence is so noted by the
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Magistrate when the case is called out, the dismissal of the case would be final,
because in fact the complainant is absent. The complainant will have to approach the
Appellate Court and ask for relief by showing good cause for his absence. Even if he
goes in the Court of Magistrate after some hours on the same day, he cannot seek
restoration of the case. But in a case like this when the complainant is present and the
Magistrate had instantly noted the presence of the complainant and has so recorded it,
to dismiss the complaint inspite of it would be tantamount to exercise of jurisdiction
when really there was none. In other words where it is found that the order of
acquittal on the ground of absence of the complainant is not in accordance with the
terms of the said section, it is a nullity and without jurisdiction. Such a null and void
order is non est in the eye of law and does not under all circumstances, require to be
set aside by a higher court. Such an order can always be ignored. There is in my view
a fundamental difference between a wrong and unjust order and an order without
jurisdiction which amounts to a nullity. In order to attract the provisions of Section
256 Cr. P.C. the very condition precedent is that the complainant must be absent. If
the complainant had in fact not been absent, dismissing the complaint would be
exercising the jurisdiction when none existed in the Court. After all the object of
Section 256 Cr. P.C. is to prevent the dilatory tactics of the complainant. It is not
meant to give a tool in the hands of the Court to dispose of the case by resorting to
unwarranted provision.

13. The learned Counsel for the petitioner brought to my notice, the decision in
Ekambara Mudali's case (3 supra) for contending that even if the case is dismissed on
the ground of mistake of fact by the Court, the only remedy is to approach the higher
Court. What had happened in this case was that the case was filed on 19-2-1929 and
was posted on 26-2-1929 when it came up, according to the diary extract it was
adjourned to 1-3-1929. When the case was called out on 1-3-1929 the complainant
was absent and the accused was acquitted under Section 247 Cr. P.C. (Code of Cr.
P.C., 1898). On March the 5th the complainant's Counsel represented that in fact the
case was posted to fifth and not to first. On verification it was indeed found that the
case was posted to fifth and not on first. The learned Magistrate therefore, took the
case on file. The said order of taking case on file was challenged in the High Court and
the High Court allowed the petition by holding that the only course left was to
approach the higher Court. The Magistrate had no jurisdiction to revive the case even
though there was mistake of fact. I do not think that the proposition laid down in this
case is quite correct. On the other hand, in Pritam Singh v. State (4) AIR 1969 All.
513 and Radha Kishan v. Ram Nath (5) 1975 Crl. L.J. 1579, which are of Allahabad
and Calcutta High Courts respectively, it has been specifically held that if the case is
called out on a date which was in fact not fixed for hearing and if the complainant is
absent on that day, the Magistrate has no jurisdiction to dismiss the complaint and if
such dismissal is ordered, the case can be revived by the Magistrate as the order of
dismissal is invalid since its inception. The decision in Ekambara Mudali's case (3
supra) has been referred to in Pritam Singh's case (4 supra) and has not been
approved. I am in full agreement with the basic principle laid down in Pritam

Page: 139

Singh's case (4 supra) and Radhakishan's case (5 supra) referred above.

14. As pointed out already the principle laid down in the Supreme Court cases is
indeed binding on all the Courts throughout the country. But I have pointed out that
even the Supreme Court has very carefully stated the legal position that the
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Magistrate gets jurisdiction to dismiss the complaint only if the complainant is absent.
It would be traversity of justice if the complainant inspite of being present faces the
order of dismissal on ground of his absence merely due to some wrong assumption on
the part of the Magistrate or due to some confusion. As observed by the Allahabad
High Court in Pritam Singh's case (4 supra) there is a clear distinction between an
erroneous order and an order which is a nullity. The order which is passed under a
mistake of fact or by a Court which has no jurisdiction to pass the order, is a nullity.
On the other hand, an order which is passed not because of a mistake of fact but on
account of some misappreciation of facts or law is an erroneous order. At the cost of
repetition it may be pointed out that there was a mistake of fact in the instant case
when Court presumed that the complainant was not present though in fact he was
very much present and the fact has been recorded by the Court itself immediately as
indicated above. If the farfetched argument of the learned Counsel for the petitioner is
accepted that once the order is passed by the Magistrate even without jurisdiction due
to mistake of fact, the only remedy left is to approach the higher Court, it would result
in causing grave injustice. One example can be given merely by way of illustration
where an order of dismissal would be void ab initio. Suppose there are more than one
criminal cases pending before the learned Magistrate of two different complainants of
same name though the remaining details of surname and father's name may be
different and, in such a case the complainant in one of the cases is absent, but the
Magistrate due to some error records the order of acquittal on the docket of a different
case, in a hurry, would it mean that in the case in which the order has been written
and signed would become final in respect of the complainant in that case even though
that complainant is present? An answer would obviously be no because, the Order
would be totally invalid. Therefore, it is wrong to say that under any circumstances if
the order is passed and signed it becomes final and the only way by which it can be
challenged is by going to the superior Court. It will depend on the facts of the case as
to whether the order had become final or not. If the order is passed in total disregard
to the jurisdictional aspect, then the order would be void and a nullity and need not be
challenged in a superior Court but can be ignored and the matter can be proceeded
further from the stage where it was before passing of the non est order.
15. Having regard to all the facts and circumstances of the case, I am of the view
that in the instant case, the impugned order passed by the learned Magistrate was
nothing but ignoring, invalid and non est order passed by him earlier and thereby
doing the proper thing by continuing further with the case. The petition in the
circumstances, deserves to be dismissed. Even assuming for the sake of argument
that the impugned order passed in the instant case is bad and that the only way by
which the earlier dismissal order of same day could be challenged is by approaching
the High Court, even in that case I would suo motu exercise the powers of revision of
this Court or, the inherent powers of this Court to set aside the order of dismissal of
the complaint and restoring the case. Dismissal of the complaint in circumstances like
present one would be a total abuse of process of law and would require correction at
the hands of this Court.
16. Thus looked at from any point, I am of the firm view that this revision deserves
to be dismissed.
17. It is accordingly dismissed.
———
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