Bajrang Singh vs Ram Kishan and Another

J.S. Bedi, J.—The facts giving rise to this revision petition are as under : Ram Kishan respondent filed a complaint against Bajrang Singh petitioner u/s 420 of the Penal Code. That complaint was dismissed by the Magistrate for non-appearance of the complainant u/s 259 of the Criminal Procedure Code discharging the petitioner. Ram Kishan put in an application for restoration of the same whereupon the Magistrate, Shri B. K. Malhotra, restored the complaint and issued bailable warrants without giving the petitioner any opportunity to show cause against the review of the order of discharge. The petitioner went up in revision against that order in the Court of Session which came up before Shri R. N. Aggarwal., Additional Sessions Judge, Delhi, who dismissed the same on 10th August, 1965. It is against this order that the petitioner has come up in revision.

The view of this Court is, and has been, consistent that a Magistrate has no power of reviving a complaint dismissed in default u/s 259 of the Criminal Procedure Code, This view also finds support from Bhagwan Sahai Vs. Moti Lal, , where Raghubar Dayal J., held that revival of a complaint which has been dismissed u/s 259 of the Code or the setting aside of the order of discharge by the trial Court is not provided for. The same view is taken in Keshav Lal Vs. Gaveria, , by Wanchoo and Bapna JJ. The learned Judges in that case held that there is no provision in the Code which empowers a criminal Court to restore a criminal case once it has been finally decided and that the power of restoration has to be specifically conferred as it is the case in the CPC before it can be exercised by a Court. Reference may also be made to a case decided by Gurdev Singh in 1964 66 PLR 196 : AIR 1964 P & H 444. The learned Judge took the view that if once a Magistrate passes an order dismissing for default an application u/s 145 of the Criminal Procedure Code, the proceedings cannot be restored. This view has been upheld in Cr. R. No. 236-D 1965 (R) D/-1-9-1966 (Punj), by this Court. It is true that a contrary view has been taken in a case reported in AIR 1964 Mys 1, but in the face of numerous authorities, mentioned above, I cannot give preference to this case.

The counsel for the respondent, however, submitted that this Court has ample powers to maintain the order of revival, passed by the Magistrate, in its revisional jurisdiction even if the order of revival was illegal. But in view of the prepondering authorities mentioned above. I cannot accept the argument of the respondent''s counsel.

The last argument of the respondent''s counsel was that in any case the application put in by the respondent for restoring his complaint should be treated as a fresh complaint. But I am afraid this argument is also unacceptable.

For the reasons given, I allow this revision petition and set aside the orders of the Additional Sessions Judge and of the Magistrate, mentioned above.