The main legal point established in the judgment is the lack of inherent power available with a trial Magistrate to restore the criminal complaint dismissed in default and the importance of considering the provisions of Section 256 of the Code of Criminal Procedure before dismissing the complaint.

Viney Mittal, J.

1. The present Criminal Miscellaneous Petition has been filed under Section 482 Cr.P.C. by petitioner Bhagwant Singh for quashing the orders dated September 7, 1998 passed by the learned Judicial Magistrate, Farid-kot, as well as the orders dated February 12, 1999 passed by the learned Additional Sessions Judge, Faridkot.

2. A complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1981 was filed by the complainant-M/s Suresh Steel Industries (the present respondent) against Bhagwant Singh (the present petitioner). During the course of the proceedings before the learned Judicial Magistrate, Fariodkot, on February 10, 1998, the complainant was not present before the Court and, therefore, the Complaint was dismissed for want of prosecution.

3. Subsequently, the complainant moved an application before the learned trial magistrate and requested for the restoration of the complaint. In the aforesaid application it was averred by the complainant that his wife had got high fever and the complainant being the only male member of the family had to take her to the doctor for treatment and therefore he could not be present at the time when the case was called for hearing.

4. The Learned trial Magistrate felt satisfied with the reasons given by the complainant and also found that on February 10, 1998, the matter was fixed for consideration of an application moved by the accused for filing of some documents. It was also observed by the Learned trial Magistrate that on the day the order of dismissal for non-prosecution had been passed was not the stage when the presence of the complainant was required. Therefore, vide order dated September 7, 1998 the Learned trial Magistrate ordered the restoration of the complaint from the stage where it was dismissed. The aforesaid order dated September 7, 1998 passed by the Learned trial Magistrate has been appended as annexure P-2 to the present petition. Petitioner Bhagwant Singh felt aggrieved against the restoration of the complaint and, therefore, approached this court through Revision Petition No. 105 of 1998. This Court vide order dated October 16, 1998 dismissed the aforesaid Revision Petition with a direction to the petitioner to first approach the court of Sessions.

5. Accordingly a revision petition was filed by the aforesaid Bhagwant Singh (the present petitioner) before the learned Sessions Judge. It was heard by the learned Additional Sessions Judge, Faridkot. Vide order dated February 12, 1999 the Learned Additional Sessions Judge, Faridkot found no merit in the Revision Petition and the same was dismissed.

6. It is against the aforesaid order passed by the Learned trial Magistrate restoring the complaint as well as the order dated February 12, 1999 passed by the learned Additional Sessions Judge dismissing the Revision Petition, that the present petition has been filed. The aforesaid orders have been appended as Annexure P/2 and P/5, respectively with this petition.

7. The sole ground taken by Shri Amit Rawal learned counsel for the petitioner is that once the complaint had been dismissed for non-appearance of the complainant, the said order passed by the Learned trial Magistrate had become final and the trial Magistrate had no power to restore the case. To support his contention Shri Rawal relies upon the judgment of the Apex Court in 1988(1) R.C.R. 3 (Major Genl. A.S. Gawaya and Ors. v. S.N. Thakur and Anr.) Sh. Rawal submits that there is no inherent power vested in a trial Magistrate and therefore the order dated September 7, 1998 (annexure P-2) was wholly without jurisdiction. Sh. Rawal has further challenged the order dated February 12, 1999 (annexure P-5) passed by the learned Additional Sessions Judge also by submitting that in fact when the order dated September 7, 1998 passed by the learned trial Magistrate was without jurisdiction, then the learned Additional Sessions Judge committed an error of law in not setting aside the