The validity of the order of the Chief Judicial Magistrate, Madurai dated 29-4-1980 in directing restoration of C.C. No. 5 of 1980 by giving a fresh number, is questioned in the above petition


2. The facts of the case are as follows :- The wife, who is the respondent herein, filed a complaint against the petitioner-husband under section 494, I.P.C. The respondent-wife is employed as an Assistant in the Madurai Corporation. According to her, the petitioner is her husband. Since the husband has failed to maintain her and since the husband has married another woman. while her marriage is subsisting, the above petition has been filed by the wife. The complainant was examined on a sworn statement and thereafter the complaint was taken on file. Besides the complainant, who has been examined as P.W. 1, P.W. 2 has also been examined to support her case and thereafter the case was posted to 20-3-1980. On 20-3-1980, when the case was called, the complainant-wife was not present. Therefore, C.C. No. 5 of 1980 was dismissed by the Chief Judicial Magistrate and the accused/husband was discharged under Section 249, Cr.P.C. Thereafter, the wife filed Crl.M.P. No. 348 of 1980 in C.C. No. 5 of 1980 before the Chief Judicial Magistrate to set aside the order of discharge and prayed that the case may be restored and taken up on file and proceeded with


3. The husband objected to the maintainability of the petition and contended before the Chief Judicial Magistrate that there is no provision in the Code of Criminal Procedure for restoration of a complaint in which the accused was discharged. The learned Chief Judicial Magistrate, on hearing the parties and on going through the case, ultimately passed the following order :-


"In view of my discussion above, under the point I hold that the very same old complaint will be extracted from the file and given a fresh number and proceeded with. In the result this petition is allowed in the following terms" *


The very same old complaint will be extracted from the file and given a fresh number and proceeded with. For sworn statement of the complainant on 5-5-1980'.

"It is this order of the Chief Judicial Magistrate that is questioned by the husband before this Court under section 482, Cr.P.C


4. The learned counsel appearing for the petitioner/husband contends, that the complaint by the wife was filed under Section 494 I.P.C. against the petitioner on the ground that while the marriage of the respondent herein is subsisting, the petitioner married another woman and when such an allegation has been levelled against the petitioner and when the respondent/wife and another were examined and when the case was part-heard and posted on 20-3-1980 and on said date when the respondent/complainant was absent, the Chief Judicial Magistrate has no other alternative but to discharge the petitioner-accused under Section 249, Cr.P.C. When once there is a discharge of the accused, it will amount that there is no case against the accused and having passed an order of discharge, the Magistrate has no power to restore the case on his file. In other words, the learned counsel contends that when the petitioner figured as an accused in C.C. No. 5 of 1980 and when once the Magistrate has discharged the accused by his order dated 20-3-1980, the order of discharge put an end with respect to the offence under Section 494, I.P.C., and it has to be held that the order of discharging from the offences levelled against him is a final order. Since it is a final order, the counsel contends, that Section 362, Cr.P.C. bars the Chief Judicial Magistrate from reconsidering or reviewing the said order passed by him, for the Magistrate has already signed the final order and disposed of the case. These are the two points urged before me by the learned counsel appearing for the petitioner/husband and he contends that the impugned order of the Magistrate, in which he has directed that the same old complaint of the respondent will be extracted from the file and given a fresh number and proceeded with, will amount to an abuse of process of Court. The learned counsel appearing for the respondent/wife on the other hand contends that the order passed by the Magistrate is perfect, legal and there is no illegality as contended by the petitioner


5. In this connection, we have to bear in mind Section 203, 249 and 362, Cr.P.C. Section 203, Cr.P.C. reads as follows :-" *


Dismissal of complaint :- If, after considering the statement on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case, he shall briefly record his reasons for so doing."


Section 249, Cr.P.C. reads as follows :-


" Absence of complainant :- When the proceedings have been instituted upon complaint, 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."


Section 362, Cr.P.C. reads as follows :-


" Court not to alter judgment :- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

"Under Section 249, Cr.P.C., if the complainant is absent on the date of hearing, the Magistrate, may in his discretion, before the charge has been framed, discharge the accused. Similarly, under Section 203, Cr.P.C., if the Magistrate, after considering the statements on oath of the complainant and of the witness and the result of the inquiry under section 202, comes to the conclusion that there is no sufficient ground for proceeding, he shall dismiss the complaint and in every such case he shall briefly record his reasons for so doing. This section has no relevancy with the facts of the present case. The section that has been relied on by the learned counsel for the petitioner is Section 262, Cr.P.C. wherein it has been provided that except as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter the order or review the same except to correct a clerical or arithmetical error. The counsel appearing for the petitioner, on the basis of Sections 249 and 362, Cr.P.C. contends that the petitioner has been accused of an offence under Section 494, I.P.C. and when the learned Magistrate by his order dated 20-3-1980, discharged the petitioner, that order amounts to a final order in disposing of the case C.C. No. 5 of 1980. In order to distinguish what is a "final order" and an "interlocutory order" reliance is placed on the decision reported in Amar Nath v. State of Haryana. The Supreme Court in the Head-Note (B) has observed that" *


The term "interlocutory order" in Section 392(2) has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused : or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory order against which no revision would lie under section 397(2). But orders which are matters of moment and which affect or adjudicate the right of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.

"This observation is relied upon by the learned counsel for the petitioner to show that the order of the Magistrate in discharging the accused is a final order and when once it is a final order. Section 362, Cr.P.C. bars the Court from interfering with its order and the only course available for the respondent herein is, to file a revision before the Higher Forum. Under the circumstances, the counsel contends that the impugned order passed by the Magistrate is illegal, contrary to law and perverse


6. Reliance is also placed by the learned counsel for the petitioner on a decision reported in Bindeshwari Prasad v. Kali Singh In this case, there were proceedings under Section 107, I.P.C. between the parties and both the parties applied for copies of those proceedings on 20-12-1965. But, however, the Magistrate tossed the complaint from one Court to another for enquiry and report, without conclusive results. Ultimately, on 23-11-1968, the complaint filed by the complainant was dismissed under section 203, Cr.P.C. on the ground, that the complainant was absent and did not show any interest in the inquiry ordered by the Court. Thereafter, the aggrieved party on 7-12-1968 appeared before the Magistrate and filed an application for recalling his order. Subsequently, the Magistrate passed an order taking cognizance of the case and summoned the accused by his order dated 3-5-1972. This order was questioned by the aggrieved party contending that the Magistrate had no jurisdiction to recall the order dated 23-11-1968, for already he has dismissed the complaint under Section 203, Cr.P.C. The Supreme Court, while dealing with the matter, in paragraph 4 at page 2433, has observed" *


We, however, need not dilate on this point because there is absolutely no provision in the Code of Criminal Procedure of 1898 (which applies to this case) empowering a Magistrate to review or recall an order passed by him. Code or 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 Court have no inherent powers. In these circumstances, therefore, the learned Magistrate had absolutely no jurisdiction 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 following 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.

"7. When it was contented by the counsel appearing for the respondent in that case, that the application given by him for recalling the order of dismissal of the complaint would amount to a fresh complaint the Supreme Court at page 2433 observed as follows :-" *


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.

"On the basis of these observations of the Supreme Court, the learned counsel for the petitioner contends, that when once the petitioner is discharged by an order, that order amounts to a final order and when once it is a final order, the Court cannot touch the papers or pass any order excepting to correct arithmetical errors as contemplated under section 362, Cr.P.C. and that the the impugned order of the Chief Judicial Magistrate in directing to take an extract of the old complaint from the file and give a fresh number and proceeded with, is equally erroneous and illegal, for the Magistrate has no power to pass such an order, unless it is shown that there are fresh facts or even on the previous facts a special case is made out by the respondent. I agree with the contention of the learned counsel for the petitioner


8. The respondent has filed the case under Section 494, I.P.C. against the accused-husband for marrying another while her marriage is subsisting. The punishment under section 494, I.P.C. is severe and the accused will suffer imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. When once the petitioner is accused of an offence before the Magistrate and when the Magistrate has discharged the accused under Section 249, Cr.P.C., the order of the Magistrate is final. When it is a final order, the only remedy available to the respondent is, to revise the order of the Magistrate at a higher forum. The respondent cannot file a petition for restoration of her petition which was dismissed for default resulting in the discharge of the accused-petitioner herein. That apart, the order of the Chief Judicial Magistrate in directing to take an extract of the very same old complaint from the file and to give a fresh number and proceed with, will amount to reviewing the order which has already been passed by him on 20-3-1980 which is violative of Section 362, Cr.P.C. The impugned order passed by the Magistrate will amount to nothing nut to reviewing his own order which is not contemplated under section 362, Cr.P.C


9. In Sait Sogmal v. Simhachalam (1936 Mad WN Cri 148), King J. on the similar facts of the case, where the Magistrate has discharged the accused under Section 239, Cr.P.C. has observed that the Magistrate has no power to restore the case against the accused to file


10. In Mappillaisami v. Mutuswami 1949 AIR(Mad) 76) : 49 CrLJ 587), a Bench of this Court had an occasion to deal with the matter where the accused was discharged under section 259 of the old Code. I may make it clear at this stage that the Bench of this Court delivered its Judgment on 19-1-1948 prior to the amendment of the Criminal Procedure code. The old Section 369 of the Code of Criminal Procedure does not find the word 'final order' as is found in Section 362 of the new Code It is under these circumstances a Bench of our High Court observed" *


The Magistrate who has discharged the accused had no jurisdiction to set aside his order of discharge. The only course was to take fresh cognizance of the case on a proper complaint. That did not, however, mean that the same complaint upon which the Magistrate originally took cognizance could not be extracted from the old file and used as a foundation for the new trial. To re quire a complaint to mak

e a copy of the old complaint or draft a new one so that it could be said that an independent complaint has been filed, was quite necessary" It is this observing of the Bench of our High Court that is relied on by the learned counsel appearing for the respondent, and the counsel contends that the impugned order of the Chief Judicial Magistrate is legal and proper and there is no irregularity or illegality. I may state that when once the accused is discharged under section 249, Cr.P.C. that order is a final order. The word "final order" was not found in Section 369 of the old Cr.P.C. and the Bench of our High Court had occasion to consider only the old Section 369. Cr.P.C. Under the new Code, Sec. 362 prohibits interference when once there is a final order. I may state that the Magistrate has no power to set aside his own order of discharge, for he becomes functus officio. He can entertain another complaint from the complainant and even to entertain a fresh complaint on the facts of the old complaint a special case has to be made out by the complainant. In the present case, from the impugned order, it is seen that there is nothing to show that the complainant has made out a special case before the Magistrate nor does the order of the Magistrate spells out the same. The impugned order passed by the Magistrate on the application filed by the respondent herein in restoring the contents of C.C. No. 5 of 1980 will amount only to reviewing of his earlier order dated 20-3-1980. Under the circumstances I am of the view that, the impugned order of the Chief Judicial Magistrate is unsustainable and is contrary to law, and has, therefore, to be set aside and it is accordingly set aside.