A Magistrate has the power to re-open a case stopped under Section 258 of the Code of Criminal Procedure, as per Section 300(5) of the Code.

This petition is filed under Section 482 Code of Criminal Procedure to quash the proceedings in C.C. No. 690 of 1991 on the file of VI Metropolitan Magistrate, Madras. The petitioner is accused in that case for the offence under Section 304-A, 337 and 338 Indian Penal Code and Sections 184 and 185 of Motor Vehicles Act. The petitioner has stated that his car TSE 1326 involved in an accident on 6-12-90 for which the police charge-sheeted him before the VI Metropolitan Magistrate, Madras, that though the case was pending on the file of the learned Magistrate for nearly two years, the prosecution was never ready or produced any witness and therefore the learned Magistrate stopped the proceedings by his order dated 26-10-92 under Section 258 Code of Criminal Procedure, but to his surprise, he received a summons from the Court directing him to appear on 2-12-92 as the learned Magistrate had re-opened the case by his order dated 29-10-1992. It is further sated that the order of the learned Magistrate re-opening the case is unconstitutional, excess of jurisdiction and it is a nullity as it is a non-speaking order even without giving notice and opportunity to the accused petitioner and therefore the re-opening of the case under Section 300(5) Code of Criminal Procedure is illegal and without merit and therefore the proceedings has to be quashed.

2. From the allegations in the petition, it is clear that as the witnesses were not produced by the prosecution, the learned Magistrate had passed the order under Section 258 Code of Criminal Procedure stopping the proceedings. But the investigating officer filed a petition on 29-10-92 before the learned Magistrate that the witnesses had been to North India for a film shooting, that on account of their absence in Madras, they could not be produced before the Court and as the witnesses had returned, he was prepared to produce the witnesses for trial and therefore the case might be re-opened for trial. On the basis of this petition filed by the investigating officer, the learned Magistrate passed order on the same day, i.e. on 29-10-92, as follows :

"In view of the circumstances explained by the Sub-Inspector, permission is granted to re-open the case. Issue summons to the accused. Call on 16-11-1992."

It is this order that is being challenged now by the petitioner accused.

3. According to the learned counsel for the petitioner Mr. S. Venkataraman, the learned Magistrate, who passed the order of discharge under Section 258 Code of Criminal Procedure has no powers to re-open the case thereafter and such powers are not conferred under the Code of Criminal Procedure and therefore the order re-opening the case is to be quashed as illegal.

The learned counsel relies upon certain decisions to support his argument. The first decision relied upon by him is Bindeshwari Prasad v. Kali Singh, AIR 1977 SC 2432 : (1978 Cri LJ 187). This is a case in which the complainant who initiated a private complaint, was absent and therefore his complaint was dismissed under Section 203 Code of Criminal Procedure (Old Code) and on petition by the complainant later on, the complaint was restored by the Magistrate. Referring to the conduct of the learned Magistrate, the Supreme Court observed that there is no provision in Code of Criminal Procedure empowering the Magistrate to review or recall a judicial order passed by him and the inherent powers conferred under the Code of Criminal Procedure can be invoked only by the High Court and the subordinate Criminal Courts have the powers to recall a judicial order passed by them. In another decision of the Apex Court in, MAJ. GEN. Gauraya v. Thakur, AIR 1986 SC 1440 : (1986 Cri LJ 1074), which is also a case of same facts in which the private complaint was dismissed for the non-appearance of the complainant, the Supreme Court, referring to the earlier decision cited above, has held that the Magistrate has no inherent power to review his order of dismissal and restor