Case Note & Summary
The petitioner, Kishore Babubhai Ruparel, filed a criminal complaint under Section 500 read with Section 34 of the Indian Penal Code, 1860 (IPC) against two accused for defamation. The complaint was dismissed for want of prosecution on 31.07.2008 because the complainant and his advocate were absent. On the same day, the complainant moved an application for restoration, stating he was out of town and his advocate had personal work. The learned Judicial Magistrate First Class, Khamgaon, restored the complaint on 17.08.2008 after considering the application, affidavit, and objections. The accused challenged this restoration order in Criminal Revision No.112/2009 before the Adhoc Additional Sessions Judge, Khamgaon, who allowed the revision on 13.07.2010, setting aside the restoration order on the ground that the Magistrate had no inherent power to restore a complaint under the Code of Criminal Procedure, 1973 (CrPC). The complainant then filed the present criminal writ petition in the Bombay High Court. The High Court examined the legal issue of whether a Magistrate can restore a complaint dismissed for default. The court noted that the CrPC does not expressly provide for restoration of complaints, but the Magistrate possesses inherent powers to secure the ends of justice. The court distinguished the case of Maj. Genl. A.S. Gauraya v. S.N. Thakur, which held that a Magistrate cannot exercise inherent jurisdiction to restore a complaint, but observed that the Supreme Court in later decisions has recognized such power. The High Court held that the Magistrate's order of restoration was valid and set aside the revisional order, thereby restoring the complaint to its original number. The court also noted that a second complaint is permissible if within limitation, but restoration is a more appropriate remedy.
Headnote
A) Criminal Procedure - Restoration of Complaint - Inherent Power of Magistrate - Section 500 IPC, Code of Criminal Procedure, 1973 - The issue was whether a Magistrate can restore a complaint dismissed for default of prosecution. The High Court held that the Magistrate has inherent power to restore such complaint to secure the ends of justice, and the absence of an express provision in the CrPC does not bar restoration. The court set aside the revisional order and restored the Magistrate's order of restoration. (Paras 1-6) B) Criminal Procedure - Second Complaint - Permissibility - Section 500 IPC, Code of Criminal Procedure, 1973 - The court observed that a second complaint is permissible in law if it can be brought within the limitation period, but restoration is a more efficacious remedy. (Para 5)
Issue of Consideration
Whether a Magistrate has the power to restore a complaint dismissed for default of prosecution under the Code of Criminal Procedure, 1973.
Final Decision
The High Court allowed the writ petition, set aside the impugned judgment of the Additional Sessions Judge dated 13.07.2010, and restored the order of the Trial Magistrate dated 17.08.2008 restoring the complaint. The complaint was restored to its original number.
Law Points
- Magistrate has inherent power to restore complaint dismissed for default
- absence of express provision in CrPC does not bar restoration
- second complaint is permissible if within limitation
- Section 500 IPC defamation
