TaxTMI 
TaxTMI 
2024 (9) TMI 627
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....y the learned Additional Sessions Judge-03 & Special Judge (Companies Act), Dwarka Courts, South-West, New Delhi (here in after referred to as 'Special Judge') in Complaint Case No. 438/2019, titled ROC v. Vakamulla Chandra Shekhar & Ors., restoring the said case that had been dismissed due to non-appearance of the respondent, vide order dated 24.04.2019 passed by the learned Special Judge. 2. The petitioner also challenges the order dated 16.04.2022 passed by the learned Special Judge issuing summons to the petitioners on the above Complaint for offence under Sections 447/448 of the Companies Act, 2013 (in short, 'Companies Act'), and all consequentially proceedings emanating therefrom. Facts in brief 3. The respondent has filed t....
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....summoning the accused. He submits that the learned Special Judge does not have the power to restore a Complaint once it was dismissed for non-prosecution/non-appearance of the Complainant/Respondent. 9. He submits that the Impugned Order dated 13.08.2019, in essence, amounts to a restoration/review/recall of the order dated 24.09.2019, which is impermissible in law as no provision of the Cr.P.C. allows for such process. He places reliance on the judgment of the Supreme Court in Maj. Gen. A.S Gauraya & Anr. v. S.N. Thakur & Anr., (1986) 2 SCC 709. 10. Placing reliance on the judgement of the Supreme Court in Xxx v. State of Kerela & Ors., 2021 SCC OnLine SC 1323, he submits that the power under Section 362 of the Cr.P.C. is limited and....
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....rt in A.S. Gauraya (supra). In the said judgment, the Supreme Court, in answering the question as to "Whether a Subordinate Criminal Court has any inherent jurisdiction outside the provisions of the Criminal Procedure Code?", and in similar fact situation where the Complaint dismissed due to the absence of the Complainant therein has been restored by the learned Magistrate, held that:- "9. Section 249 of the Criminal Procedure Code enables a Magistrate to discharge the accused when the complainant is absent and when the conditions laid down in the said section are satisfied. Section 256 (1) of the Criminal Procedure Code enables a Magistrate to acquit the accused if the complainant does not appear. Thus, the order of dismissal of a....
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....sider them...." We would like to point out that this approach is wrong. What the court has to see is not whether the Code of Criminal Procedure contains any provision 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. It was relying upon this decision that the Delhi High Court in this case directed the Magistrate to recall the order of dismissal of the complaint. The Delhi High Court referred to various decisions dealing with Section 367 (old Code) of the Criminal Procedure Code as to what should be the contents of a judg....
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....dge or the High Court in revision. In fact, after having passed the order dated November 23, 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 May 3, 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 ....