The Magistrate has the power to dismiss a complaint for non-appearance of the complainant and acquit the accused, but once dismissed, the Magistrate has no power to restore the case.

1. - This revision is directed against the order of Munsif and Judicial Magistrate, Mawali dated 10-6-83 dismissing the complaint for want of prosecution.

2. Brief facts of the case are that the complainant Fatehlal herein petitioner was president of Rajasthan Shikshak Sangh (Shekhawat Group) (hereinafter referred to as the (Sangh) sub-branch, Mawli. The non-petitioner Shyam Sunder was Secretary of the Sangh. In the year 1978, due to inactiveness, the non-petitioner was removed from secretaryship. The petitioner became Convener of the Sangh. Thereafter, the non-petitioner called a meeting and a no confidence motion was got passed against the petitioner without any notice to him. This news regarding removal of the petitioner from the post of President was got published by the non-petitioner on,3-6-82 in daily newspaper. Aggrieved by it, the petitioner filed a complaint under section 500 IPC, before the Munsif and Judicial Magistrate, Mawli.The learned Magistrate after holding enquiry, examined the complainant under section 200 Cr. PC and the other witnesses under section 202 Cr. PC and issued process against the non-petitioner. The application was rejected on 15-5-83, and process was issued for appearance on 10-6-83. On 10-6-83 both; the complainant-petitioner and the accused did not appear and the learned Magistrate, dismissed the complaint. The complainant moved an application for restoration of the complaint but the same was dismissed. Hence, this revision.

3. Mr. G.S. Mehta, learned counsel for the petitioner has submitted that the learned Magistrate has erred in law is not restoring the case and submitted that the learned Magistrate has no power to dismiss the complaint. He has further submitted that a direction may be issued for retrial of the case. He has relied on the decisions reported in 1959 RLW 100 (C.R. Alwares v. Habool & Anr. ) and AIR 1965 Raj. 19 (Joharilal v. Ramjilal ).

4. Mr. M.C. Bishnoi, appearing on behalf of the non-petitioner has submitted that the Magistrate has no power to restore the complaint when once it is dismissed, and the order passed by the learned Magistrate is perfect.

5. I have heard learned counsel for the parties and perused the record. The question for consideration in this revision is as to whether the Magistrate has power to dismiss the complaint due to non appearance of the complaint, and if so, whether he has power to restore it back. For resolving the controversy raised in this revision, it would be proper to read Section 256, which reads as under :

Section 256 Cr. PC Non-appearance or death of Complainant :

"(1) If the summons has been issued on complainant, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, not withstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance any proceed with the case."

6. It is clear from the perusal of Section 256 that on complainant, if summons has been issued to the accused to appear and on the appointed day the complainant remains absent, the Magistrate has power to acquit the accused or for some reasons adjourn the hearing provided that the complainant is represented by a pleader or by any officer and in the opinion of the Magistrate the personal attendance of the complainant is not necessary and he may dispense with his attendance and proceed with the case. Thus, there remains no doubt that Magistrate has power to dismiss the complaint in case the complainant remains absent but this power must be exercised judiciously. As regards the restoration of complai