M.L. Mehta, J.

1. This is a petition under section 482 Cr. P.C. seeking quashing of order dated 07.12.2011 passed by the MM, Mahila Court (East) whereby the application filed by respondent No.2 and her son Master Daljeet Singh, respondent No. 3, for restoration of their petition under section 125 Cr. P.C., which was dismissed in default, was allowed and the petition was restored.

2. The impugned order of the learned MM, Mahila Court has been assailed mainly on two grounds. Firstly, that the Magistrate has no power to review or recall its own order of dismissal of complaint on account of non-appearance of the complainant in view of section 256 and 362 of Code of Criminal Procedure and secondly, that in any case, there was no justifiable ground for restoration of the petition after 21months of its dismissal in default.

3. I have heard learned counsel for the petitioner.

4. With regard to the first submission, it may be noted that the provisions of section 256 Cr. P.C. are not attracted in the case of dismissal of a petition under section 125 Cr. P.C. Though such petitions are termed as complaints, but, the respondents in these petitions are not treated as accused. Section 256 Cr. P.C. stands attracted when complainant fails to appear and no reason is given for adjourning the case and only then the Magistrate is empowered to dismiss the complaint in default and resultantly acquit the accused. Even such power was subject to proviso which further empowers the Magistrate to dispense the attendance of the complainant through Advocate or authorized representative if the nature and the stage of the case appear to be so demanding.

5. It is true that the complaint dismissed in default cannot be restored by the Magistrate under the provisions of Cr.P.C. as there is no specific provision of such eventuality. However, it is trite that proceedings for maintenance under section 125 Cr. P.C. are of the nature of civil proceedings though the criminal process is applied for the purpose of summary and speedy disposal of such matters. In fact, such proceedings can be termed to be that of hybrid character. It is understood that exercise of inherent power can be done for setting right the wrong with the applicability of ‘ubi jus ibiremedium’. The provisions of section 125 Cr. P.C. cannot be compared with the proceedings of a complaint case since the former proceedings are not for the purpose of fact finding of complicity in a criminal case, but is to decide a civil right of the complainant/petitioner through the process of Criminal Procedure Code. In the case of Smt. Prema Jain Vs. Sudhir Kumar Jain, 1980 Cri. L. J. 80, the Single Judge Bench of this Court held that restoration application in such a case is maintainable because the dismissal was administrative in nature rather than a judicial one. The learned Single Judge held that the Magistrate has power to set aside dismissal order and restore the proceedings under section 125 of the Criminal Procedure Code. While agreeing with the learned Single Judge with regard to the power of the Magistrate to set aside the dismissal order and to restore the proceedings under section 125 Cr. P.C., I have not been able to persuade myself to certain observations in the said case in regard to the nature of order rendered in respect of the dismissal. The dismissal order cannot be regarded as administrative one. A Division bench of Punjab and Haryana High Court in Smt. Kamla Devi and others vs. Mehma Singh, 1989 Cri. L.J., 1866 also held that Magistrate can order restoration of the petition on sufficient cause being shown as proceedings under section 125 Cr. P.C. are civil in nature. The Division Bench also observed that in a way the provisions in Chapter_IX of the Criminal Procedure Code constitute a Code of Procedure by itself.

6. So far as the provisions of section 362 Cr. P.C. are concerned, it may be mentioned that the prohibition imposed is to the extent of impermissibility pertaining to alteration of j