IMPORTANT POINT
Dismissal of default--Once complaint is dismissed in default, remedy available to complainant is to challenge order of dismissal in default by filing a revision petition--Magistrate has no power to recall order of dismissal in default by exercising inherent jurisdiction.

Sabina, J.:-This petition has been filed under Section 482 of the Code of Criminal Procedure for setting aside order dated 2.7.2008 passed by the Additional Sessions Judge, Ferozerpur (Annexure P- 4) allowing the revision of the respondent and set aside order dated 13.1.2005 passed by the Judicial Magistrate, Ist Class, Fazilka.

2. Learned counsel for the petitioner has submitted that the petitioner had been regularly appearing before the trial Court but unfortunately he could not appear before the trial Court on 13.11.2003 and the complaint filed by the petitioner was dismissed for want of prosecution vide order Annexure P-2. Thereafter the petitioner moved an application for restoration of the complaint and the same was rightly allowed by the trial Court vide order dated 13.1.2005 (Annexure P-3). In revision, learned Additional Sessions Judge had erred in setting aside the order dated 13.1.2005 vide order dated 2.7.2008 (Annexure P-4). In support of his arguments, learned counsel has placed reliance on the decision of this Court in Nambhi Raj vs. Adarsh Diwan 2004 (1) RCR (Criminal) 978, wherein, in para 4, it was held as under:-

“After hearing the learned counsel and perusing the aforementioned judgments, I am of the considered view that the order dated 13.11.2000 passed by the Magistrate restoring the complaint has been upheld by the Additional Sessions Judge and it shall now be deemed that the order dismissing the complaint passed on 4.10.2000 has been set aside by the Additional Sessions Judge. Therefore, it would be extreme technically that no revision was filed by the complainant and the Magistrate has no jurisdiction to restore the complaint. Moreover, the second revision by the petitioner would not be competent by invoking Section 482 Cr.P.C. Therefore, there is no ground to interfere and the petition is liable to be dismissed.”

3. Learned counsel has further placed reliance on the decision of the Apex Court in The Associated Cement Co.Ltd. vs. Keshvanand 1998 (1) RCR (Criminal) 309, wherein, in para 16, it was held as under:-

“Reading the section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considderes that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice.”

4. Learned counsel for the respondent, on the other hand, has submitted that the Magistrate had no inherent power to restore the complaint. Learned counsel has placed reliance on the decision of the Apex Court in Major General A.S.Gauraya vs. S.N.Thakur 1988 (1) RCR (Criminal) 3, wherein, it was held as under:-

“So far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction.”

5. Learned counsel has further placed reliance on the decision of the Apex Court in