Augustine George Masih, J.

Prayer in the present petition is for quashing of the order dated 13.12.2004 (Annexure P-2) passed by the Additional Chief Judicial Magistrate, Ludhiana vide which the complaint which was dismissed in default for want of prosecution vide order dated 15.7.2004 (Annexure P-1) stands restored and for quashing of all subsequent proceedings arising therefrom i.e. summoning order dated 16.1.2007 (Annexure P-3) and further quashing of the complaint Annexure P-4.

2. Counsel for the petitioners contends that a criminal complaint preferred by a private person once dismissed for non-prosecution on account of his non- appearance amounts to passing of a final order which cannot be recalled or reviewed by the Magistrate. The said order can only be challenged by the complainant in accordance with law before a superior Court and it is only the superior Court which can, for the reasons which are justified and specified by the requirement of law, set aside such an order. He submits that the subordinate criminal Court does not have any inherent jurisdiction as is available under Section 482 Cr.P.C. in the High Court and there being no provision under the Code of Criminal Procedure which would give powers to a Magistrate to recall or review an order passed by him, order dated 13.12.2004 (Annexure P-2) passed by the Additional Chief Judicial Magistrate, Ludhiana, cannot be sustained. In support of this proposition, counsel for the petitioners has relied upon the judgments of the Honble Supreme Court in the case of Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432 [LQ/SC/1976/256] , Major General A.S.Gauraya v. S.N.Thakur, 1988(1) R.C.R.(Criminal) 3 : AIR 1986 (SC) 1440 [LQ/SC/1986/154] .

3. On the other hand, counsel for the respondent contends that in the present case, complaint was preferred by the respondent against the petitioners. Before the issuance of summons, respondent No. 1-complainant could not appear before the Court on 15.7.2004 being unwell. The case was fixed for pre- summoning evidence of the complainant and, therefore, no prejudice was caused to the petitioners by restoration of the case. He contends that at the stage when the case was dismissed for non-prosecution and was subsequently restored, it was between the Magistrate and the complainant alone as the petitioners had yet not been summoned in the case. The Magistrate having been satisfied with the reasons given by the complainant for non-appearance on the date fixed, restored the complaint and proceeded to further take pre-summoning evidence of the complainant. He further contends that the Magistrate has not considered the complaint on merits nor has he dismissed the complaint on consideration of the matter and had merely proceeded to dismiss the complaint for non- prosecution due to non-appearance of the complainant. The question of discharge of the accused and the applicability of Section 242 Cr.P.C., does not come into picture as the accused-petitioners were not discharged by the Court. It is only in case of discharge of the accused that the Magistrate cannot recall the order of dismissal of the complaint. Even otherwise, the order dated 15.7.2004 was an interim order and not a final judgment and, therefore, the same could be recalled by the Magistrate. In support of his contention, counsel for the respondent has relied upon the judgments of this Court in the cases of Suresh Kumar and others v. Railway Protection Force and others, 2004 (3) RCR (Criminal) 917 [LQ/PunjHC/2004/628] , Smt. Kamla Devi and others v. Mehma Singh, 1989(1) R.C.R.(Criminal) 476 : 1990(3) R.C.R.(Criminal) 600 : 1989 (1) PLR 487 [LQ/PunjHC/1989/10] and a Division Bench judgment of the Delhi High Court in the case of Shiv Kumar v. Mohd. Saghir, 1997(1) RCR(Criminal) 709.

4. I have heard counsel for the parties and have gone through the records of the case as also the judgments relied upon by the counsel for the parties. There can be no dispute with regard to the proposition that the inherent powers under Section 482 Cr.P.C. are only available with the High Court. The Courts below, therefore, do not have the powers under Section 482 Cr.P.C. which, therefore, they cannot exercise at any stage. The Courts below, therefore, are bound by the powers as have been made available to them under the Code of Criminal Procedure. There is no provision under the Code of Criminal Procedure which empowers the Magistrate to recall or review his order, once passed by him, except in cases where they are all interim in nature. Dismissal of a complaint cannot be termed as an order which is not final whether it is due to default on the part of the complainant to appear before the Court or due to want of prosecution. Once a power vested in the Magistrate under the Code of Criminal Procedure has been exercised, the same cannot be modified, changed or recalled by the Magistrate unless such power is conferred upon the Magistrate under the Code of Criminal Procedure. There being no provision under the Criminal Procedure Code empowering the Magistrate to review or recall his earlier order dismissing the complaint in default and for want of prosecution, the order passed by the Magistrate attains finality which can only be set aside or modified by a superior Court in accordance with law. The other option available to the complainant in case the complaint has been dismissed for non-prosecution is to prefer another complaint on the same facts if permissible under the law.

5. The Honble Supreme Court in Bindeshwari Prasad Singhs case (supra) in para 4 of the judgment has held as follows :-

"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 1898 (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, 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. 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 1962 Supp (2) SCR 297 : (AIR 1962 SC 876 [LQ/SC/1961/410] ). 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."

6. Relying upon this proposition, the Honble Supreme Court in the case of Major General A.S.Gaurayas case (supra) wherein the facts of the case were similar to the case in hand has held that the Magistrate could not recall his order once the complaint has been dismissed for nonprosecution. It has been further held that no criminal Court has any inherent jurisdiction, being not provided for in the Criminal Procedure Code.

7. In the light of the above two judgments of the Honble Supreme Court wherein the Honble Supreme Court has held that the order passed by the Magistrate dismissing the complaint cannot be reviewed or recalled, the order dated 13.12.2004 (Annexure P-2) passed by the learned Additional Chief Judicial Magistrate, Ludhiana, cannot be sustained and deserves to be set aside. The judgments relied upon by the counsel for the respondent in the light of the judgments of the Honble Supreme Court referred to and relied upon above, will be of no help to the respondent.

8. Accordingly, the present petition is allowed, the order dated 13.12.2004 (Annexure P-2) passed by the learned Additional Chief Judicial Magistrate, Ludhiana is hereby quashed. As a consequence of the quashing-of the order dated 13.12.2004 (Annexure P-2) all subsequent proceedings and the orders in these proceedings passed by the Magistrate shall be deemed to have been quashed.

Petition allowed.