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TMI Blog2024 (9) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in A.S. Gauraya [ 1986 (4) TMI 362 - SUPREME COURT ]. In the said judgment, the Supreme Court, in answering the question as to Whether a Subordinate Criminal Court has any inherent jurisdiction outside the provisions of the Criminal Procedure Code? , and in similar fact situation where the Complaint dismissed due to the absence of the Complainant therein has been restored by the learned Magistrate, held that ' Filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal Procedure Code does not contain any provision enabling the criminal court to exercise such an inherent power.' In view of the above settled position in law, the order passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove mentioned complaint under Sections 447/448 of the Companies Act alleging there in that the accused company had not utilised the IPO proceeds of 1540.56 Lakhs for the purposes stated in the prospectus, and had diverted the proceeds to various entities through group companies and other entities. 4. The Complaint was listed before the Special Judge on 06.03.2019, 25.03.2019, and again on 18.04.2019, however, none appeared for the respondent/complainant. None appeared for the Complainant even on 24.04.2019. Therefore, by the order dated 24.04.2019 passed by the learned Special Judge, noting that the respondent/complainant does not seem interested in perusing the Complaint, the Complaint was dismissed. 5. The respondent filed an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical or arithmetic error in an order. He also places reliance on Pramod Kumar Jain Ors. v. State of NCT of Delhi, 2017 SCC OnLine Del 8726. Submissions by the learned counsel for the respondent 11. The learned counsel for the respondent submits that on 24.09.2019, when the Complaint was dismissed for non-prosecution, none had appeared for the respondent as the Ministry of Law and Justice had not appointed a counsel for the complainant. A counsel was subsequently appointed on 07.06.2019 by the Ministry of Law and Justice. 12. She submits that the complaint was rightly restored by the learned Special Judge vide order dated 13.08.2019, and therefore, no infirmity can be found in the order dated 16.04.2022 passed by the learned Special Judge ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a proper order. 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 to revive it. A second complaint is permissible in law if it could be brought within the limitations imposed by this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar [AIR 1962 SC 876] . Filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal Procedure Code does not contain any provision enabling the criminal court to exercise such an inherent power. 10. In B.D. Sethi v. V.P. Dewan [1971 DLT 162] a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction. 11. For our purpose, this matter is now concluded by a judgment of this Court in the case of Bindeshwari Prasad Singh v. Kali Singh (1977) 1 SCC 57. We may usefully quote the following passage at p. 126 of the Reports: (SCC pp. 59-60, para 4) Even if the Magistrate had any jurisdiction to recall this order, it could have been done by another judicial order after giving reasons that he was satisfied that a case was made out for recalling the order. We, however, need not dilate on this point because there is abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the complaint would amount to a fresh complaint. We are, however, unable to agree with this contention because there was no fresh complaint and it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out. This has been held by this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar [AIR 1962 SC 876] . For these reasons, therefore, the appeal is allowed. The order of the High Court maintaining the order of the Magistrate dated May 3, 1972 is set aside and the order of the Magistrate dated May 3, 1972 summoning the appellant is hereby quashed. 16. In view of the above settled position in law, the order dated 13.08.2019 passed by the learned Special Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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