The exercise of discretion by the Magistrate under Section 256 of the Cr. P. C. must be judicial and fair, and the court must ensure that the cause of administration of criminal justice is not impaired.

( 1 ) THIS petition is filed under Section 482 Cr. P. C. for quashing the order of an Additional Sessions Judge, karkardooma Courts, Delhi dated 22. 8. 2000 passed in a revision petition whereby he has set aside the order of a metropolitan Magistrate dated 16. 10. 1999 and has restored the criminal complaint which was dismissed in default.

( 2 ) THE facts are simple. The respondent filed a complaint for prosecution of the petitioner for committing offence under Section 138 of the Negotiable Instrument act. It was fixed before the Magistrate on 16. 10. 1999 on which date the complainant did not attend hearing. Learned Magistrate dismissed the complaint. This order was challenged by the respondent in a revision petition preferred before the Additional sessions Judge. The additional Sessions Judge though agreed with the petitioner accused that revision petition was not maintainable but was of the view that the court in exercise of the power vested by Section 397 Cr. P. C. may examine the legality and propriety of any findings, sentence and order so it can also look into any illegality of the proceeding by an inferior court. He held that the order impugned in the revision petition revealed an illegality and the defect in procedure and it suffered from manifest error in law which had resulted in the miscarriage of the justice. Therefore, he set aside the order dated 16. 10. 1999 and restored the complaint and directed the trial court to proceed with its trial in accordance with law.

( 3 ) THE petitioner is aggrieved and has filed the instant petition. Counsel for the petitioner has argued that the complaint was dismissed in default by the learned magistrate in exercise of the power given by Section 256 of the Cr. P. C. and upon dismissal of the complaint the accused stood acquitted and not discharged. He urged that only an appeal to the High Court will lie against the order of acquittal and resort to the revision under section 397 Cr. P. C. before the Additional Sessions Judge was without jurisdiction. It was argued that the order of the learned Additional Sessions Judge entertaining the revision petition against an order which was appellable and restoring the criminal complaint, is patently illegal, erroneous and without jurisdiction.

( 4 ) HE had cited Guest Kleen Williams Ltd. Vs. Muralilal 1984 RLR 32 where a Division Bench of this court held that against an order of dismissal of a complaint under Section 256 of the Cr. P. C. only an appeal lies. He also REFERRED TO the judgement of Shri M. M. S. Bedi Vs. Union Territory of Chandigarh and another 1986 vol. 79 PLR 687: Vinod Kumar Vs. State of Punjab 1999 (4) Recent criminal Reports 469; and a judgement of Himachal Pradesh high Court in H. P. Agro Industries Corporation Ltd. Vs. M. P. S. Chawla l997 (2)Crimes 591 in support of his argument that the dismissal of the complaint under Section 256 of the Cr. P. C. resulted in acquittal of the accused and an appeal and not the revision, will be the remedy to challenge it. Counsel, therefore, urged that the additional Sessions Judge has erroneously exercised jurisdiction which did not vest in him for setting aside the order and this has resulted in miscarriage of justice.

( 5 ) COUNSEL for respondent initially justified the order of the Additional Sessions Judge impugned in this petition on the ground that it was not in accordance with the law laid down by the Supreme Court in Associated cement Co. Ltd. Vs. Keshvanand AIR 1998 SC 596 and a judgement of the Division Bench of this court in Shiv kumar Vs. Mohd. Saghir and Others 1997 JCC 149 but finally conceded that technically speaking revision did not lie against the order of dismissal of a complaint under section 256 Cr. P. C. in view of the consistent view held by the courts that dismissal resulted in acquittal of the accused and against the acquittal only an appeal would be the appropriate legal remedy to challenge it. However, he submitted that in view of the order