Restoration of Criminal Complaint by Magistrate: Aiding Justice by Amending Law

“Quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest.” [1]

Section 482[2] of the Code of Criminal Procedure, 1973 (“CrPC/Code”) saves the inherent power of the High Court(s). As per the said provision, “Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

A bare perusal of the provisions of Section 482 CrPC would clearly demonstrate that the said section does not confer any new power on the High Court[3]. In fact, it only saves the inherent power, which every High Court possessed before the enactment of the Code. Further, the provision envisages three circumstances under which the inherent jurisdiction may be exercised, namely: to give effect to an order under the Code; to prevent abuse of the process of court and to otherwise secure the ends of justice.

As per the Supreme Court[4], “The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution.” Pertinent to mention here that the Courts have consistently cautioned[5] that though, the inherent jurisdiction under Section 482 CrPC is wide, however, the same must be “exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist.”

Under the Code of Civil Procedure, 1908 (“CPC”), provision[6] for saving the inherent power of the Courts, including that of the trial courts, exists, however, no provisions for saving of inherent powers of the courts, subordinate to the High Court, exist under the Code/CrPC. Despite this, the subordinate courts, even in criminal proceedings are not handicapped to exercise their ancillary/auxiliary powers to do what is absolutely necessary for dispensation of justice. It is trite law[7], “[u]nder such circumstances in order to do what is absolutely necessary in the ends of justice or prevent prejudice or miscarriage of justice what is not prohibited could be taken as permitted because the Code of Criminal Procedure cannot be taken to have contemplated and provided for every contingency by making exhaustive provisions to meet the situations”.

As per the  Supreme Court[8], “All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice.” Clearly, despite the existence of an express provision under the Code/CrPC, saving the inherent powers of trial courts, all criminal courts are possessed of an “auxiliary power subject to restrictions which justice, equity, good conscience and legal provisions demand, provided it will not unnecessarily prejudice somebody else.”[9]

The inherent powers of the High Court(s) have, time and again, been invoked, inter alia, for seeking quashing of criminal complaint(s)/FIR(s) and proceedings, inter alia, in the instances where; criminal cases have a predominant and an overwhelming element of civil dispute, which the victim and the offender have settled[10]; continuance of prosecution will be a futile exercise which would serve no purpose[11]; allegations made in the first information report or the complaint, even if they are taken on their face value and accepted in their entirety, do not prima facie constitute any offence[12] or make out a case against the accused; allegations made in the FIR or complaint are so absurd and inherently improbable[13] on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; quashing of orders of issuance of summons/process[14]; etc.

Another instance where the inherent powers of the High Court(s) is often invoked is for the restoration of criminal complaint[15], dismissed for non-prosecution. However, no such power of restoration of criminal complaint, dismissed for non-prosecution, or power of review exists with the trial/Magistrate’s Court. In fact, it is trite law[16], under the Code/CrPC no power is conferred on the Magistrate to review or recall the order passed by him[17]. Accordingly, the only remedy available with the complainant under such an event is the invocation of the inherent powers of the High Court.

In this regard, the Supreme Court in A.S. Gauraya v. S.N. Thakur[18], observed, “[b]ut 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…..The Criminal Procedure Code does not contain any provision enabling the criminal court to exercise such an inherent power.”

These principles were reiterated by the Punjab and Haryana High Court[19] to the effect, “The Code of Criminal Procedure does not confer any power to review/recall an order. The only situation, in which a court may legitimately alter its order is, where it proposes to correct clerical and/or arithmetical errors. A complaint, once dismissed for failure of the complainant to put in appearance, therefore, cannot be restored.”

Pertinently, under CPC, the provisions for restoration of suit[20] dismissed for failure of service of summons[21] and non-appearance of parties[22]; setting aside of an order of ex parte proceedings[23] and setting aside of ex parte decree[24], exist. However, under the Code/CrPC, once a complaint is dismissed for non-prosecution and/or the accused is discharged or acquitted, in terms of the provisions of Sections 249[25] and 256[26]  CrPC respectively, the Magistrate cannot be approached by the complainant for the purpose of restoration of such complaint/ proceeding, even for the reasons of “sufficient cause” or otherwise. In fact, as aforementioned, under such circumstances, the only remedy available with such a complainant would be to invoke the jurisdiction of High Court(s) in terms of Section 482 CrPC. Understandably, in the absence of any such power on the Magistrate’s Court to review/recall/set aside its order for dismissal of complaint for non-prosecution, the burden of the High Courts intensifies to a great deal. At the same time, the absence of remedy/recourse with a bona fide complainant may also result in undue harassment, delay in criminal proceeding/prosecution, incurring of additional expenses, etc. 

The Law Commission of India (“the Law Commission”) as early as the year 1991, carried out an exhaustive study, inter alia, of the provisions of Section 256 CrPC, especially in the context of absence of power of the trial/ Magistrate’s Court to restore criminal complaint/proceedings and submitted its Report[27] on its comments and recommendations. The Law Commission in the said Report duly acknowledged that the absence of such power of restoration of criminal complaint/ proceeding with the trial court may, “cause and are likely to cause serious hardship and injustice in practice in several cases.” It was further appreciated by the Law Commission that even in the cases where such absence of the complainant may be justified by the reasons of “sufficient case”, the consequential order of acquittal of the accused for the reasons of such absence may result in throwing out of a meritorious case. Under such an event of passing of an order of acquittal, it was recognised, would bar a subsequent trial before the same court and the complainant would be bound/burdened to take recourse to remedies of appeal, etc., which may prove costly and tedious. Further, acknowledging, “a meritorious complaint of a complainant cannot be allowed to be thwarted, only on the ground that the complainant was unable to remain present”, the Law Commission was of the opinion that the power to set aside dismissal and restoring the complaint has to be conferred with the criminal/Magistrate’s Court. Accordingly, the Law Commission recommended the amendment to Section 256 CrPC by incorporating the provision of initial termination of proceedings on complainant’s absence which may ultimately lead to acquittal, unless the order of such termination is set aside in the manner proposed. As per the recommendation of the Law Commission, the order of termination of proceedings may be set aside within a period of 30 (thirty) days of such order, on an application of the complainant and the service/notice of the same on the accused.

The Law Commission, again vide its 233rd Report[28] reiterated its previous recommendations made in the year 1991 and recommended, “appropriate  amendments in Sections 249 and 256 of the Code of Criminal Procedure, 1973 inserting provisions on the lines of Order 9 CPC, enabling restoration of complaints.” Pertinently, in its earlier Report (141st Report), the Law Commission had also recommended amendment of Section 482 CrPC for conferment of inherent powers also on all subordinate criminal courts, other than the High Court. Clearly, the recommendations were premised on the understanding that the same may enable reducing the burden of superior courts and ensuring that no injustice is resulted as a course of administration of criminal justice.

It is settled law, procedural prescriptions/laws are the handmaid and not the mistress; a lubricant, not a resistant, in the administration of justice[29]. As per the Supreme Court[30], “Procedure is meant to subserve and not rule the cause of justice. Procedural laws must be liberally construed to really serve as handmaid. Technical objections which tend to defeat and deny substantial justice should be strictly discouraged.” Further, considering the dynamic nature of laws and dependent on the need of society, laws must adapt and modify so that such societal needs are properly catered to. In light of recommendations of the Law Commission and being cognizant of the fact that the absence of provisions of restoration of criminal complaint, dismissed for some unforeseeable and unavoidable reasons would result in aggravating the plight of the victim, complainant and the overburdened judicial system, it is only apt that the recommendations of the Law Commission for amendment of the provisions of Sections 249 and 256 CrPC are adopted under the Code. In the alternate or simultaneously, explicit provision for recognition of the ancillary powers or conferment of inherent powers on trial/ Magistrate’s Court may be introduced under the Code so that the mere absence of procedural provisions, does not deprive the victims of abuse of their substantial rights and proper legal recourse.

*Managing Associate, L&L Partners Law Offices

[1] Latin maxim meaning, “When the law gives anything to anyone, it also gives all those things without which the thing itself could not exist.”

[2] Section 482 CrPC  

[3] Priya Vrat Singh v. Shyam Ji Sahai, (2008) 8 SCC 232 

[4] State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 

[5] State of A.P. v. Golconda Linga Swamy, (2004) 6 SCC 522 

and State of A.P. v. Gourishetty Mahesh, (2010) 11 SCC 226 

[6] 151. Saving of inherent powers of Court.—Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of the justice or to prevent abuse of the process of the court.

[7] Madhavi v. Thupran, 1987 SCC OnLine Ker 219

[8] Minu Kumari v. State of Bihar, (2006) 4 SCC 359 [Also refer to State Prosecutor, In re, 1972 SCC OnLine Ker 201]

[9] Madhavi v. Thupran, 1987 SCC OnLine Ker 219

[10] Parbatbhai Aahir v. State of Gujarat, 2017 SCC OnLine SC 1189

[11] Shiji v. Radhika, (2011) 10 SCC 705

[12] State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335

[13] Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736; State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 and M. Mohan v. State, (2011) 3 SCC 626

[14] Urmila Devi v. Yudhvir Singh, (2013) 15 SCC 624; Aroon Poorie v. Jayakumar Hiremath, (2017) 7 SCC 767

[15] Jagir Singh v. State of Haryana, 2006 SCC OnLine P&H 1276; Purshotam Mantri v. Vinod Tandon, 2008 SCC OnLine P&H 125

[16] Bindeshwari Prasad Singh v. Kali Singh, (1977) 1 SCC 57

[17] Including an order passed for dismissal of complaint for its non-prosecution

[18] (1986) 2 SCC 709

[19] Krishan Lal v. Sangeeta Aggarwal, 2009 SCC OnLine P&H 4894

[20] Order 9  Rule 4 of the Code of Civil Procedure, 1908 

[21] Order 9  Rule 2 of the Code of Civil Procedure, 1908 

[22] Order 9  Rule 3 of the Code of Civil Procedure, 1908  

[23] Order 9  Rule 7 of the Code of Civil Procedure, 1908 

[24] Order 9  Rule 13 of the Code of Civil Procedure, 1908 

[25] 249. Absence of complainant.—When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.

[26] 256. Non-appearance or death of complainant.— (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

[27] 141st Report on Need for Amending the Law as Regards Power of Courts to Restore Criminal Revisional Application and Criminal Cases Dismissed for Default in Appearance.

[28] 233rd Report on Amendment of Code of Criminal Procedure Enabling Restoration of Complaints (August, 2009)

[29] State of Punjab v. Shamlal Murari, (1976) 1 SCC 719

[30] Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62

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