Bhagwan Singh vs Mst. Gurnam Kaur and Another

Shamsher Bahadur, J.—The question which arises for determination in this petition for revision is whether a criminal Court passing an order dismissing a petition for maintenance u/s 488 of the Code of Criminal Procedure in default can subsequently set aside its own order and restore the application ?

An application was filed by Gurnam Kaur u/s 488 of the Code of Criminal Procedure for the grant of maintenance allowance against her husband Bhagwan Singh The application was being proceeded with when on 18th of November, 1963. Gurnam Kaur petitioner being absent it was dismissed after it had been called several times On her subsequent appearance the same day the trial Court passed an order issuing notice to Bhagwan Singh to produce his evidence on 5th of December, 1963. Bhagwan Singh thereafter filed a petition for revision before the learned Sessions Judge who has forwarded this petition to this Court with a recommendation that the order passed by the Magistrate being without jurisdiction should be quashed. The recommendation is based on a decision of Gurdev Singh J. Babu Ram v. Ramji Lal (1864) 66 P.L.R. 196 in which it was said that if once a Magistrate passes an order-dismissing for default an application u/s 145 of the Code of Criminal Procedure, the proceedings cannot be restored. The reasoning of the learned Judge was that a criminal court, other than a High Court, does not possess any inherent powers nor is there any provision in the Criminal Procedure Code to review its judgment or order, not even in cases where the order is patently wrong or contrary to law.

Conceitedly, there is no provision in the Code of Criminal Procedure which could justifiably empower the Magistrate to restore for hearing an application which is dismissed in default by a Magistrate. Mr. Grewal, the learned counsel for the petitioner, in support, of the reference, has brought to my attention a Division Bench judgment of Harrington and Mookerjee JJ. in Hakimi Jan Bibi v. Mouze Ali, (1905) 2 Cri.L.J. 218 Harington J. speaking for the Court, hell that the law does not empower a Magistrate to rehear an application for maintenance u/s 488, Criminal Procedure Code, dismissed for non-appearance.

The learned counsel for the respondent has contended that the Court in its inherent powers can always review its judgment and the Magistrate''s action in restoring the petition when the petitioner reappeared on the day when it was dismissed in default must be upheld. In the absence of any provision in the Code itself, the power of restoration cannot be spelled out from the general provisions. Being in respectful agreement with the authority of Gurdev Singh J. of this Court aid of the Division Bench of the Calcutta High Court, I would accept the recommendation and quash the order of the Magistrate