High Court · 2025

3. Let necessary amendment be carried out in the application by learned counsel for applicants during the course of the day. Order on Application U/S 528 BNSS

1. Heard Sri Dr. Akhilesh Kumar, learned counsel for the applicants, Sri Vikas Sharma, learned State Law Officer for the opposite party no.1 and Sri Ajay Kumar Upadhyay, learned counsel for opposite party no.2.

2. A joint statement has been made by the learned counsel for the parties that they do not propose to file any affidavits and the application is being decided on the basis of documents available on record. With the consent of the parties, the application is being decided at the fresh stage.

3. The case of the applicants is that complaint was lodged by the opposite party no.2 in the month of December, 2022 against the applicants under Sections 498A, 323, 504, 506 IPC read with Section 3/4 of the D.P. Act. However, the said complaint came to be dismissed under Section 203 of the Cr.P.C. by order dated 21.11.2024 of A.C.J.M., Court No. 3, Agra in Complaint Case No.154 of 2013 against which the opposite party no.2 preferred a recall/restoration application dated 29.11.2024 for recalling of the order dated 21.11.2024. The said application came to be allowed on 29.11.2024 recalling the order dated 21.11.2024 and thereafter on 18.3.2025, the applicants have been summoned under Sections 498A, 323, 504, 506 IPC and 3/4 of the D.P. Act.

4. Questioning the order dated 29.11.2024 as well as the summoning order dated 18.5.2025 the applicants have preferred the present application.

5. Learned counsel for the applicants has submitted that once the complaint preferred by the opposite party no.2 came to be dismissed under Section 203 of the Cr.P.C. then a second complaint may be maintainable but recall/restoration application would not be maintainable. He seeks to rely upon the decision of the Hon'ble Apex Court in Bindeshwari Prasad Singh vs Kali Singh (1977) 1 SCC 57, Sanjeev Kapoor vs. Chandana Kapoor and others (2020) 13 SCC 172 and Criminal Misc. Recall/Restoration Application No.4 of 2023 in Application U/S 482 No.1835 of 2022, Parvez Shahjahan and 4 others vs. State of U.P. and another decided on 6.10.2023.

6. Sri Ajay Kumar Upadhyay, learned counsel for opposite party no.2 on the other hand submits that he could not dispute the said legal position however according to him liberty be accorded to file a revision under Section 397/401 Cr.P.C./438 and 442 of the BNSS.

7. I have hard the submissions so made across the bar and perused the record carefully.

8. Undisputedly, the complaint preferred by the opposite party no.2 came to be dismissed on 21.11.2024 in exercise of the provisions under Section 203 of the Cr.P.C. against which a recall/restoration application was preferred which came to be allowed on 29.11.2024 and thereafter on 18.3.2025 the applicants have been summoned. The issue regarding maintainability of the restoration/recall application once a complaint stands dismissed under Section 203 of the Cr.P.C. came up for consideration in Bindeshwari Prasad Singh (supra) wherein it has been observed as under:- "4. We might mention that the order dated 23rd November, 1968 was a judicial order by which the Magistrate had given full reasons for dismissing the complaint. 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 absolutely no provision in the Code of Criminal Procedure of 1908 (which applies to this case) empowering a Magistrate to. review or recall an order passed by him. Code of Criminal Procedure does contain a provision for inherent powers, namely, Section 561-A which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 of Civil Procedure Code, the subordinate criminal courts have no inherent powers. In these circumstances, there- fore, the learned Magistrate had absolutely no jurisdic- tion to recall the order dismissing the complaint. The remedy of the respondent was to move the Sessions Judge or the High Court in revision. In fact after having passed the order dated 23-11-1968, the Sub-Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever. In these circumstances, therefore, the order even if there be one, recalling order dismissing the complaint, was entirely without jurisdiction. This being the position, all subsequent proceedings follow- ing upon recalling the said order,would fall to the ground including order dated 3-5-1972 summoning the accused which must also be treated to be a nullity and destitute of any legal effect. The High Court has not at all considered this important aspect of the matter which alone was sufficient to put an end to these proceedings. It was suggested by Mr. D. Goburdhan that the application given by him for recalling the order of dismissal 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(1). For these reasons therefore, the appeal is allowed. The Order of the High Court maintaining the order of the Magistrate dated 3-5-1972 is set aside and the order of the Magistrate dated 3-5-1972 summoning the appellant is hereby quashed"

9. The interpretation of Section 362 of the Cr.P.C. also came up for consideration in Sanjeev Kapoor (Supra) and Parvez Shahjahan (supra).

10. Since restoration/recall application against the dismissal of a complaint under Section 203 of the Cr.P.C. is not maintainable, thus the orders dated 29.11.2024 as well as 18.3.2025 restoring the complaint and summoning the applicants under Sections 498A, 323, 504, 506 IPC read with Section 3/4 of the D.P. Act. cannot be sustained, they are accordingly set aside.

11. Passing of this order today may not be construed to be an expression that this Court has adjudicated on merits of the matter however, the opposite party no.2 is at liberty to take remedies which are permissible and advisable under law.

12. Accordingly, the application stands disposed of. Order Date :- 20.5.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad

3. Let necessary amendment be carried out in the application by learned counsel for applicants during the course of the day. Order on Application U/S 528 BNSS

1. Heard Sri Dr. Akhilesh Kumar, learned counsel for the applicants, Sri Vikas Sharma, learned State Law Officer for the opposite party no.1 and Sri Ajay Kumar Upadhyay, learned counsel for opposite party no.2.

2. A joint statement has been made by the learned counsel for the parties that they do not propose to file any affidavits and the application is being decided on the basis of documents available on record. With the consent of the parties, the application is being decided at the fresh stage.

3. The case of the applicants is that complaint was lodged by the opposite party no.2 in the month of December, 2022 against the applicants under Sections 498A, 323, 504, 506 IPC read with Section 3/4 of the D.P. Act. However, the said complaint came to be dismissed under Section 203 of the Cr.P.C. by order dated 21.11.2024 of A.C.J.M., Court No. 3, Agra in Complaint Case No.154 of 2013 against which the opposite party no.2 preferred a recall/restoration application dated 29.11.2024 for recalling of the order dated 21.11.2024. The said application came to be allowed on 29.11.2024 recalling the order dated 21.11.2024 and thereafter on 18.3.2025, the applicants have been summoned under Sections 498A, 323, 504, 506 IPC and 3/4 of the D.P. Act.

4. Questioning the order dated 29.11.2024 as well as the summoning order dated 18.5.2025 the applicants have preferred the present application.

5. Learned counsel for the applicants has submitted that once the complaint preferred by the opposite party no.2 came to be dismissed under Section 203 of the Cr.P.C. then a second complaint may be maintainable but recall/restoration application would not be maintainable. He seeks to rely upon the decision of the Hon'ble Apex Court in Bindeshwari Prasad Singh vs Kali Singh (1977) 1 SCC 57, Sanjeev Kapoor vs. Chandana Kapoor and others (2020) 13 SCC 172 and Criminal Misc. Recall/Restoration Application No.4 of 2023 in Application U/S 482 No.1835 of 2022, Parvez Shahjahan and 4 others vs. State of U.P. and another decided on 6.10.2023.

6. Sri Ajay Kumar Upadhyay, learned counsel for opposite party no.2 on the other hand submits that he could not dispute the said legal position however according to him liberty be accorded to file a revision under Section 397/401 Cr.P.C./438 and 442 of the BNSS.

7. I have hard the submissions so made across the bar and perused the record carefully.

8. Undisputedly, the complaint preferred by the opposite party no.2 came to be dismissed on 21.11.2024 in exercise of the provisions under Section 203 of the Cr.P.C. against which a recall/restoration application was preferred which came to be allowed on 29.11.2024 and thereafter on 18.3.2025 the applicants have been summoned. The issue regarding maintainability of the restoration/recall application once a complaint stands dismissed under Section 203 of the Cr.P.C. came up for consideration in Bindeshwari Prasad Singh (supra) wherein it has been observed as under:- "4. We might mention that the order dated 23rd November, 1968 was a judicial order by which the Magistrate had given full reasons for dismissing the complaint. 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 absolutely no provision in the Code of Criminal Procedure of 1908 (which applies to this case) empowering a Magistrate to. review or recall an order passed by him. Code of Criminal Procedure does contain a provision for inherent powers, namely, Section 561-A which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 of Civil Procedure Code, the subordinate criminal courts have no inherent powers. In these circumstances, there- fore, the learned Magistrate had absolutely no jurisdic- tion to recall the order dismissing the complaint. The remedy of the respondent was to move the Sessions Judge or the High Court in revision. In fact after having passed the order dated 23-11-1968, the Sub-Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever. In these circumstances, therefore, the order even if there be one, recalling order dismissing the complaint, was entirely without jurisdiction. This being the position, all subsequent proceedings follow- ing upon recalling the said order,would fall to the ground including order dated 3-5-1972 summoning the accused which must also be treated to be a nullity and destitute of any legal effect. The High Court has not at all considered this important aspect of the matter which alone was sufficient to put an end to these proceedings. It was suggested by Mr. D. Goburdhan that the application given by him for recalling the order of dismissal 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(1). For these reasons therefore, the appeal is allowed. The Order of the High Court maintaining the order of the Magistrate dated 3-5-1972 is set aside and the order of the Magistrate dated 3-5-1972 summoning the appellant is hereby quashed"

9. The interpretation of Section 362 of the Cr.P.C. also came up for consideration in Sanjeev Kapoor (Supra) and Parvez Shahjahan (supra).

10. Since restoration/recall application against the dismissal of a complaint under Section 203 of the Cr.P.C. is not maintainable, thus the orders dated 29.11.2024 as well as 18.3.2025 restoring the complaint and summoning the applicants under Sections 498A, 323, 504, 506 IPC read with Section 3/4 of the D.P. Act. cannot be sustained, they are accordingly set aside.

11. Passing of this order today may not be construed to be an expression that this Court has adjudicated on merits of the matter however, the opposite party no.2 is at liberty to take remedies which are permissible and advisable under law.

12. Accordingly, the application stands disposed of. Order Date :- 20.5.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad