AMENDMENT OF Cr.P.C ENABLING RESTORATION-233RDLAW COMMISSION

AMENDMENT OF CODE OF CRIMINAL PROCEDURE
ENABLING RESTORATION OF COMPLAINTS
CONTENTS
I. INTRODUCTION 8 – 14
II. LAW COMMISSION’S 141ST REPORT 15
III. RECOMMENDATION 16
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I. INTRODUCTION
1.1 It is a well settled law that a criminal court has no power like the one
which a civil court possesses under Order IX of the Code of Civil Procedure
1908 (CPC) to restore a complaint dismissed in default, as the accused
stands discharged or acquitted depending on the case being a warrant-case or
a summons-case. In order to get the complaint restored, a complainant, poor
or rich, has to knock the door of the High Court under section 482 of the
Code of Criminal Procedure 1973 (CrPC). If a Magistrate has the power to
entertain a complaint and decide it on merits after summoning the accused,
he should also have power to restore it on good or sufficient cause being
shown and re-summon the accused to face the trial on merits.
1.2 The relevant provisions of the CrPC are:
(i) Section 249 relating to warrant-cases -
“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.”
(ii) Section 256 relating to summons-cases -
“Non-appearance or death of complainant.- (1) If the summons has
been issued on complaint, and on the day appointed for the
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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 non-appearance of the complainant is due to his
death.”
1.3 Section 249 will not apply to a case in which the Magistrate tries an
accused for offences that are non-compoundable and cognizable. This
section applies only to offences that may be lawfully compounded or are
non-cognizable. Therefore, the Magistrate has no discretion to discharge an
accused when the offences are of serious nature. Chapter XIX of the CrPC
containing the procedure for trial of warrant-cases by Magistrates prescribes
two procedures, one for trial of cases instituted on police reports and the
other for trial of cases instituted on private complaints. The law-makers
have excluded non-compoundable and cognizable offences from the
purview of section 249 because for more serious offences, the police,
generally, file charge-sheets.
1.4 With regard to offences that are compoundable and non-cognizable
where discretion is given to the Magistrate to discharge the accused for the
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absence of complainant, the Magistrate may be vested with the power to
restore the complaint on file if sufficient cause is shown by the complainant
for his absence on the date of hearing.
1.5 There may be several reasons for the absence of complainant on the
date of hearing. One most important cause may be total bandh call given by
the political parties or hartal where transport is suspended completely, both
public and private. This is a genuine cause for absence of complainant from
appearing before court. Complainant on his way to court may suffer severe
setback necessitating hospitalization. He may suffer (a) heartache, (b) high
BP, (c) low sugar leading to coma or (d) vertigo, etc. Death of a close
relation may be another sufficient cause.
1.6 So in each case if the complainant shows sufficient cause for his
absence, the Magistrate may restore his complaint on file. The period may
be 15 days or 30 days from the date of discharge of the accused for moving
the application.
1.7 With regard to trial of summons-cases, under section 256, the
Magistrate shall acquit the accused if the complainant does not appear on
the date of hearing. The proviso to section 256 says that where the
complainant is represented by a pleader or by the officer conducting the
prosecution or where the Magistrate is of the opinion that the personal
attendance of the complainant is not necessary, the Magistrate may dispense
with his attendance and proceed with the case. Here also there may be
sufficient reasons for the absence of complainant, examples of which have
been given in the earlier paragraphs. Under section 256, a sub-section may
be added to the effect that if the complainant shows sufficient cause for his
absence on the date of hearing, the Magistrate may restore the complaint on
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file provided the application is filed within 15 days or 30 days from the date
of acquittal of the accused.
1.8 In the CPC Order IX, Rules 4, 8 and 9 read as under:
(i) Rule 4 -
“Plaintiff may bring fresh suit or Court may restore suit to file.-
Where a suit is dismissed under rule 2 or rule 3, the plaintiff may
(subject to the law of limitation) bring a fresh suit; or he may apply
for an order to set the dismissal aside, and if he satisfies the Court that
there was sufficient cause for such failure as is referred to in rule 2, or
for his non-appearance, as the case may be, the Court shall make an
order setting aside the dismissal and shall appoint a day for
proceeding with the suit.”
(ii) Rule 8 -
“Procedure where defendant only appears.- Where the defendant
appears and the plaintiff does not appear when the suit is called on for
hearing, the Court shall make an order that the suit be dismissed,
unless the defendant admits the claim, or part thereof, in which case
the Court shall pass a decree against the defendant upon such
admission, and, where part only of the claim has been admitted, shall
dismiss the suit so far as it relates to the remainder.”
(iii) Rule 9 -
“Decree against plaintiff by default bars fresh suit.- (1) Where a suit
is wholly or partly dismissed under rule 8, the plaintiff shall be
precluded from bringing a fresh suit in respect of the same cause of
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action. But he may apply for an order to set the dismissal aside, and if
he satisfies the Court that there was sufficient cause for his nonappearance
when the suit was called on for hearing, the Court shall
make an order setting aside the dismissal upon such terms as to costs
or otherwise as it thinks fit and shall appoint a day for proceeding
with the suit. … .”
1.9 When provisions have been provided to restore a suit which has been
dismissed on the ground of absence of plaintiff, similar provisions need be
provided under the CrPC also.
1.10 In the absence of such provisions under sections 249 and 256, the
complainants have to move the High Court under criminal revision where
the accused has been discharged or in appeal against acquittal where the
accused has been acquitted. By adding provisions for restoration of
complaints, the burden on the High Courts will be lessened.
Inherent power of subordinate courts
1.11 The subordinate criminal courts have no inherent powers.1 The
formula “interest of justice” is not available to the subordinate criminal
judiciary beyond the frontiers of the statutory provisions and does not enable
entry into the corridor of investigation.2 However, courts exist for
dispensation of justice and not for its denial for technical reasons when law
and justice otherwise demand. Even though inherent power saved under
section 482, CrPC is only in favour of High Courts, the subordinate criminal
courts are also not powerless to do what is absolutely necessary for
dispensation of justice in the absence of a specific enabling provision
1 Tulsamma v. Jagannath, 2004 Cri. L. J. 4272
2 State of Kerala v. Vijayan, 1985(1) CRIMES 261
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provided there is no prohibition and no illegality or miscarriage of justice is
involved. All the criminal courts are having such an auxiliary power subject
to restriction which justice, equity, good conscience and legal provisions
demand provided it will not unnecessarily prejudice somebody else.3 A
Division Bench of the Kerala High Court has in In the matter of State
Prosecutor4 held that the subordinate courts have the inherent power to act
ex debito justitiae (in accordance with the requirement of justice) to do the
real and substantial justice for which alone they exist. The absence of any
reference to any other criminal court in the said provision does not
necessarily imply that such courts can in no circumstances exercise inherent
power. Courts may act on the principle that every procedure should be
understood as permissible till it is shown to be prohibited by law.
1.12 Section 482 of the CrPC closely resembles Section 151 of the CPC.
In order to seek interference under the said section three conditions should
be fulfilled: (1) the injustice which comes to light should be of a grave
character and not of a trivial character; (2) it should be clear and palpable
and not doubtful; and (3) there exists no other provision of law by which the
party aggrieved could have sought relief.5
1.13 In Raj Narain v. State6 and In re, Biyamma7, it was held that a High
Court can revoke, review, recall or alter its own earlier decision in a criminal
revision and rehear the same by virtue of its inherent power reserved under
the said section.
3 Madhavi v. Thupran, 1987 (1) KLT 488
4 1973 Cri. L. J. 1288
5 Ram Narain v. Mool Chand, AIR 1960 All. 296; Janata Dal v. H. S. Chowdhary, AIR 1993 SC 892
6 AIR 1959 All. 315 (FB)
7 AIR 1963 Mysore 326
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1.14 The word ‘process’ is a general word meaning in effect anything done
by the court. It includes criminal proceedings in a subordinate court.
Therefore, power should be vested in the subordinate criminal courts to
restore the complaint which was dismissed by default with a view to secure
justice. Whenever the Magistrate is satisfied that it is necessary in order to
secure the ends of justice, he should be able to interfere with his earlier
order. The court which has the power to entertain a case and order notice and
decide the case on merits should also have the power to correct an obvious
error.
1.15 If a court finds that it delivered a judgment without hearing the party
who was entitled to be heard himself or through his counsel which was
necessary in the interest of justice, the court should be empowered to set
aside the judgement and grant rehearing of the matter. It is true that there is
no provision in the CrPC to the said effect. Nevertheless, in the interest of
justice and the independence of the Judiciary, judges and magistrates should
be at full liberty to discuss the conduct of persons before them either as
parties or as witnesses. While exercising this power, courts should bear in
mind that no person should be condemned without being heard.
1.16 However, the Supreme Court in A. S. Gauraya v. S. N. Thakur8
specifically ruled that the CrPC does not contain any provision enabling a
Magistrate to exercise inherent power to restore a complaint by revoking his
earlier order dismissing it for the non-appearance of the complainant.
II. LAW COMMISSION’S 141st REPORT
8 (1986) 2 SCC 709
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2.1 The 12th Law Commission of India in its 141st Report titled “Need for
Amending the Law as regards Power of Courts to Restore Criminal
Revisional Applications and Criminal Cases Dismissed for Default in
Appearance” [1991] recommended, inter alia, amendment of section 256 of
the CrPC enabling restoration of a criminal case wherein the accused has
been acquitted for non-appearance of the complainant where there was
sufficient cause for the non-appearance. A meritorious complaint cannot be
allowed to be thwarted only on the ground that the complainant was unable
to remain present, even though there existed good and sufficient cause for
such absence.
2.2 The Law Commission in its aforesaid Report further recommended
amendment of section 482 of the CrPC for conferment of inherent powers
also on all subordinate criminal courts other than the High Court.
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III. RECOMMENDATION
3. We hereby recommend appropriate amendments in sections 249 and
256 of the Code of Criminal Procedure 1973 inserting provisions on the lines
of Order IX of the CPC, enabling restoration of complaints.
(Dr Justice AR. Lakshmanan)
Chairman
(Prof. Dr Tahir Mahmood) (Dr Brahm A Agrawal)
Member Member-Secretary
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