Restoration of private complaint dismissed for fault.

The petitioners have preferred this Revision Petition under section 439 of the Code of Criminal Procedure, against the order, dated 5th October, 1962, made by the District and Sessions Judge, Raichur, in Criminal Revision Petition No. 85/6 of 1962. By that order, he confirmed the order of the District Magistrate, Raichur, who restored the complaint dismissed by him to its original number.

The respondent made a complaint in the Court of the District Magistrate, Raichur, against the accused who are the present petitioners, complaining that they have committed an offence punishable under sections 464 and 107 of the Indian Penal Code. This complaint came to be dismissed by the learned Magistrate on 16th July, 1962 for non-appearance of the complainant, the effect of which is to discharge the accused under section 259 of the Code of Criminal Procedure. On 21st July, 1962, the respondent made an application stating therein that she, on account of difficulties, could not appear in Court in time and her Lawyer was also absent. The learned Judge accepted the application holding that he recollected that the complainant did approach the Court after the order of dismissal and relying upon the decision reported in Wasudeo Narayan, In re1 restored the complaint to its original number. The accused took the matter in Revision to the Sessions Court, Raichur, who agreed with the conclusion of the learned Magistrate and dismissed the Revision. The accused therefore, have preferred this Revision Petition under section 439 of the Code of Criminal Procedure, challenging the correctness of the orders of the Courts below.

Mr. Jagirdar appearing for the petitioners has contended that the order passed by the Courts below is without jurisdiction inasmuch as there is no prevision in the Code of Criminal Procedure which empowers a Magistrate to revive a complaint which has been dismissed for default. On the other hand, Mr. K.A. Swamy, appearing for the respondent-complainant has contended that there is no prohibition contained in the Code of Criminal Procedure for entertaining such an application, and therefore, the Magistrate had the necessary jurisdiction to revive the complaint dismissed. These rival contentions were sought to be supported by various decisions. Before I proceed to examine the various decisions to which my attention was drawn by the respective counsel for the petitioners and the respondent. I would in brief refer to the relevant provisions of the Code of Criminal Procedure. Now, under section 190 of the Code of Criminal Procedure, the Magistrate is empowered to take cognizance of any offence upon receiving a complaint of facts which constitute such an offence. Then, under section 200 of the same Code, when the Magistrate saking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. This is subject to the proviso mentioned below the section. Then, under section 203,

"The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the witnesses and the result of the investigation or enquiry if any under section 202, there is in his judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing."

Thus, the Magistrate before whom the complaint has been filed, if, on Material placed before him is not satisfied that any offence has been committed, then, he may dismiss the complaint. But if he does not dismiss the complaint, then he has got to issue process as required by section 204 of the Code of Criminal Procedure.

Now, in this case, what has happened is, that the complaint filed by the respondent-complainant was dismissed for default, and when such a complaint