SHYAMA DEVI Vs. SADAN SEWAK

JUDGEMENT

(1.) This is a reference under Section 438, Criminal P. C., by the learned Additional District Magistrate of Kanpur recommending that an order passed by a learned Honorary Special Magistrate Second Class of Kanpur setting aside an order of dismissal of a complaint and restoring the said complaint be set aside.

(2.) It appears that the learned Magistrate was hearing the complaint under Section 427, Penal Code. The case had been adjourned to 9-10-1950. On that day complainant was found absent and the learned Magistrate dismissed the complaint. Subsequently the complainant put in appearance and made an application on the same day for the complaint being restored. The learned Magistrate allowed this prayer and restored this complaint.

(3.) It may be pointed out that unlike the Code of Civil Procedure, the Code of Criminal Procedure contains no provision for restoration of complaints dismissed for non-appearance of the complainant. It is certainly open to a complainant to file a fresh complaint and in appropriate cases an application for restoration may be treated as a fresh complaint. But a fresh complaint can be filed only before a Magistrate empowered to take cognizance thereof under Section 190 (1), Criminal P. C. In the present case, the learned Honorary Special Magistrate was not such a person. He could not entertain a fresh complaint. He could hear such cases only as were transferred to him by other Courts competent to take cognizance of a fresh complaint. In the circumstances, it was not open to the learned Honorary Special Magistrate to treat an application for restoration as a fresh complaint.