ORDER :- The question that arises for consideration in this Civil Revision Petition is whether when an application made to a Civil Court to make a complaint of an offence falling under S. 195 (1) (b) or (c). Criminal Procedure Code is dismissed for default, an application to set aside Code, is competent. I should have thought the dismissal under O. 9, R. 9, Civil Procedure that the contention of the petitioner was unarguable. A reference has been made to the decision of Full Bench in Kumaravel v. Shanmuga, ILR (1940) Mad 762 : (AIR 1940 Mad 465) (A). All that the Full Bench decided was that if an application is made to a Civil Court under S. 476, Criminal Procedure Code, and the Court grants or refuses to grant the application to prosecute a party to the suit or the witnesses before it, a revision has to be brought before the High Court under S. 115 Civil Procedure Code, and not under S. 439, Criminal Procedure Code.

There was a controversy about this point of procedure for some time and it was set at rest by this decision of the Full Bench. This case, however, has no application in considering the question whether an application to take action under S. 476, Criminal Procedure Code, dismissed for default can be restored by the Court under O. 9, R. 9, Civil Procedure Code. Order 9, R. 8, empowers the Court to dismiss a suit for default of the plaintiffs appearance and O. 9, R. 9, Civil Procedure Code, provides that if a suit is dismissed under O. 9, R. 8, a fresh suit on the same cause of action is barred, but the plaintiff might apply for an order to set aside the dismissal for default. There are no corresponding provisions in the Criminal Procedure Code either authorising the dismissal for default of setting aside the dismissal of a complaint.

Under S. 247 of the Criminal Procedure Code the non-appearance of a complainant results in the acquittal of the accused and there is no question of setting aside the acquittal by an application to the same Magistrate. The dismissal of a complaint is no bar to a fresh complaint being filed. It is argued that since the decision of the Full Bench above cited has held that S. 115 of the Civil Procedure Code is applicable to revisions brought before the High Court from an order under S. 476, Criminal Procedure Code, the provisions of S. 141, Civil Procedure Code, are also applicable. Section 141, Civil Procedure Code, applies only to original proceedings in the nature of suits, such as, for example, probate and guardianship proceedings. It has been held both by the Judicial Committee and by the High Courts that S. 141, Civil Procedure Code, does not authorise the restoration of an execution petition dismissed for default, the remedy of the decree-holder being to file a fresh petition.

Therefore, it cannot be contended that S. 141, Civil Procedure Code, applies to all proceedings initiated in a Civil Court, irrespective of their true character. A Court which is moved to make a complaint of an offence under S. 195 (1), Criminal Procedure Code, acts in the interests of public justice and not in the interests of the applicant or any of the parties to the suit. The absence of the applicant on the date fixed for hearing, is, therefore, no ground for dismissing the application for default and if an application is so dismissed there is nothing like the rule of res judicata or a provision similar to O. 9, R. 9, Civil Procedure Code, to debar a fresh application.

2. For these reasons, I am of the opinion that O. 9, R. 9, Civil Procedure Code, has no application to the case and the petition was rightly dismissed by the Court below. The Civil Revision Petition is dismissed with costs of the 1st respondent.

Revision dismissed.

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