Case Note & Summary
The petitioner, Dinkar Suryabhanrao Shinde, a Police Circle Inspector, filed a Criminal Writ Petition under Section 482 Cr.P.C. and Article 227 of the Constitution of India challenging the order dated 19.8.1992 passed by the Judicial Magistrate, First Class, Udgir in Regular Criminal Case No.226/1988. The order was for issuance of process against the petitioner under Sections 302, 201, 504, 506 Part I, 109 and 498-A read with Section 34 of the Indian Penal Code. The private complaint was filed by respondent No.2, Kashiram Sangram Hallale. The petitioner contended that the complaint was initially dismissed for default on 1.7.1992, and the Magistrate could not have restored it due to the bar under Section 362 Cr.P.C. The petitioner relied on Hari Singh Mann vs. Harbhajan Singh Bajwa (2001 (1) Mh.L.J.465) and Bindeshwari Prasad Singh vs. Kali Singh (AIR 1977 Supreme Court 2432) to argue that once dismissed, the complaint could not be reviewed and a second complaint could only lie on new facts or special case. The Court noted that the complainant was unaware of the adjourned dates (25.6.1992 and 1.7.1992) as he was informed the next date was 17.8.1992, and the complaint was wrongly dismissed before that date. The Magistrate allowed the application for restoration. The High Court held that the dismissal for default was not a final order of acquittal or discharge, and restoration was not a review but a recall of an ex-parte order, thus not barred by Section 362 Cr.P.C. The petition was dismissed.
Headnote
A) Criminal Procedure Code - Restoration of Complaint - Section 362 Cr.P.C. - Bar of Review - The Magistrate restored a private complaint which was dismissed for default due to the complainant's unawareness of adjourned dates. The petitioner argued that restoration was barred under Section 362 Cr.P.C. The Court held that the order dismissing the complaint for default was not a final order of acquittal or discharge, and restoration was not a review but a recall of an ex-parte order, hence not barred by Section 362 Cr.P.C. (Paras 1-3). B) Criminal Procedure Code - Second Complaint - Maintainability - The petitioner contended that a second complaint can lie only on new facts or special case. The Court noted that the complaint was restored, not a fresh complaint, and the Magistrate had considered the complainant's explanation. (Para 2).
Issue of Consideration
Whether the Magistrate could restore a private complaint dismissed for default in view of the bar under Section 362 of Cr.P.C.
Final Decision
The petition is dismissed. The order of issuance of process dated 19.8.1992 passed by the Judicial Magistrate, First Class, Udgir in Regular Criminal Case No.226/1988 is upheld.
Law Points
- Section 362 Cr.P.C. does not bar restoration of a complaint dismissed for default as it is not a review but a recall of an ex-parte order
- Second complaint can lie on new facts or special case
- Section 482 Cr.P.C. and Article 227 of Constitution of India
