A Magistrate cannot exercise any inherent jurisdiction to restore a complaint dismissed in default.

1. This petition u/S. 482 of the Criminal P. C. 1973 (hereinafter referred to as the Code) relates to quashment of order passed by the Additional Sessions Judge, Ludhiana dated 2nd of Dec. 1987, Annexure P/5, whereby the revision petition filed by the accused petitioners against the order dated26th of March, 1987 passed by the Judicial Magistrate Ist Class, Ludhiana, Annexure P/4 refusing the set aside the order for restoration of complaint dated 14-12-1985, was dismissed.

2. In brief facts relevant for the disposal of this petition, are, that the complainant respondent filed complaint u/Ss. 323 / 452 / 504 / 506 / 436 / 354 / 440 / 148 / 149 of the Penal Code against the petitioners wherein all the accused were summoned by the Judicial Magistrate Ist Class, Ludhiana u/S. 452 of the Penal Code, Besides, Chhote Lal and Sita Ram were summoned u/S. 506 of the Penal Code. Thereafter the complaint was at evidence stage and on 9th of Nov. 1985, the date fixed before the Judicial Magistrate Ist Class, the complainant did not appear and on that ground the complaint was dismissed in default. After that the complainant moved an application for restoration on the ground that her son had received knife injury on 8th of Nov. 1985 and she had gone to the hospital and remained with her injured son. On that basis the Judicial Magistrate concerned ordered restoration of the complaint vide his order dated 14th Dec. 1985. Revision petition filed by the accused petitioners against the order of the Judicial Magistrate for restoration of complaint dismissed in default dated 14th Dec. 1985 was dismissed by the Additional Sessions Judge, Ludhiana, on 2nd of Dec. 1987.

3. The learned counsel for the parties were heard.

4. Reliance has rightly been placed by the learned counsel for the petitioners on the authority of the apex Court in Maj Genl. A. S. Gauraya V/s. S.N. Thakur, wherein it was held as under :-

"So far as the accused is concerned, dismissal of a complaint for non-appearance of the complaint 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, to restore the case. A second complaint is permissible in law if it could be brought within the limitations imposed by the Supreme Court in pramatha Nath Tauqdar V/s. 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 P. C. does not contain any provision enabling the criminal court to exercise such an inherent power. Also, what the court has to see is not whether the Code contains any provisions prohibiting a Magistrate from entertaining an application to restore a dismissed complaint, but the task should be to find out whether the said Code contains any provision enabling a Magistrate to exercise an inherent jurisdiction which he otherwise does not have."

5. On behalf of the complainant, it was submitted that since the offence u/S. 436 of the Penal Code was exclusively triable by the Court of Session, the Magistrate had no jurisdiction to dismiss the complaint in default.

6. The argument is devoid of any merit. In Smt. Nagawa V/s. Veeranna Shivalingappa Konjalgi, 1976 SCC (Cri) 507 the apex Court held that at the stage of issuing process the magistrate is mainly concerned with the allegations made in the complaint of the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one.

7. Following earlier decisions in Chandra Deo Singh V/s. Prakash Chandra Bose, AIR 1963 SC 1430 and Vadilal Panchal V/s. Dattatraya Dulaji Ghadigaonker, AI