Dismissal Of Complaint For Non-Prosecution Is Final Order, Magistrates Lack Inherent Powers To Restore Such Cases: J&K High Court
LIVELAW NEWS NETWORK
7 July 2024 4:55 AM GMT
The High Court of Jammu & Kashmir and Ladakh has asserted that a Magistrate cannot exercise inherent jurisdiction to restore a complaint once dismissed due to the complainant's non-appearance.
A bench comprising Justice Vinod Chatterji Koul has declared that such dismissals are final orders, emphasizing the absence of any provision in the Code of Criminal Procedure (Cr.P.C.) that confers this power on the Trial Court.
The case originated with a complaint filed by Zia Darakshan against Mehraj ud Din Andrabi under Section 138 of the Negotiable Instrument Act. The Trial Court initially took cognizance of the complaint and issued a process against Andrabi on March 6, 2017.
This order was contested by Andrabi in a revision petition before the Additional Sessions Judge, Srinagar. However, the Additional Sessions Judge upheld the Trial Court's order on July 24, 2018, remanding the case back to the Trial Court for further proceedings.
Subsequently, the complaint was dismissed in September 2018, due to Darakshan's failure to appear in court. In response, Darakshan filed an application for the restoration of the complaint, which the Trial Court granted, restoring the complaint to its original status.
Andrabi, represented by Advocate Parvaiz Nazir, contended that the Trial Court's order was an abuse of process, arguing that the Cr.P.C. does not grant the Trial Court the authority to review or restore a dismissed complaint. He asserted that the dismissal of a complaint for non-appearance is a final order, and there is no inherent jurisdiction for its restoration.
On the other hand, Darakshan, represented by Advocate Gulzar Ahmad, maintained that the Trial Court's decision to restore the complaint was justified and necessary for the interests of justice.
Justice Koul examined the records and noted that the Cr.P.C. lacks any provision allowing a Magistrate to review or recall its orders, except for correcting clerical or arithmetical errors. He emphasized that a dismissed complaint cannot be restored due to the absence of specific statutory authority.
“It may be mentioned here that dismissal of complaint for non-appearance of complainant, or discharge or acquittal of accused on the same ground is a final order, and in absence of any specific provision in the Code of Criminal Procedure, a Magistrate cannot exercise any inherent jurisdiction”,the bench underscored.
The court further cited the precedent set in Maj. Genl. A.S. Gauraya and another v. S.N. Thakur and another, AIR 1986 affirming that the Trial Court lacked the jurisdiction to restore the complaint. Justice Koul highlighted the inherent powers of the High Court under Section 482 of the Cr.P.C., which can be exercised to give effect to an order under the Code, to prevent abuse of the process of court and to secure the ends of justice.
In light of these findings the court concluded by setting aside the Trial Court's restoration of complaint order. However, it allowed Darakshan the liberty to seek appropriate legal remedies for any grievances against Andrabi, as initially presented in the dismissed complaint.
Case Title: Mehraj ud din Andrabi Vs Zia Darakshan
Citation: 2024 LiveLaw (JKL) 180
