RAYAPPA Vs. SHIVAMMA

JUDGEMENT

(1.) 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 Session Judge, Raichur, in Criminal Revision Petition No. 85/6 of 62. By that order, he confirmed the order of the District Magistrate, Raichur, who restored the complaint dismissed by him to its original number.

(2.) 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 494 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 AIR1950 Bom 10 , In re Wasudeo Narayan, restored the com-plaint 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.

(3.) Mr. Jagirdar appearing for the petitioners has contended that the order passed by the Courts below is without jurisdiction inasmuch as there is no provision 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.