KAMPAVATI JAIN Vs. STATE OF U P

JUDGEMENT

(1.) B . L. Yadav, J This revision is directed against the order dated 10 -2 -86 passed by 4th Additional Sessions Judge, Muzaffarnagar allowing the revision and setting aside the order dated 3 -12 -85 passed by the Magistrate in a proceeding under section 145 of the Criminal Procedure Code, 1973 (for short the Code).

(2.) IN the proceedings under section 145 of the Code, 13th December, 1985 was a date fixed when Ashok Kumar Jain, the opposite party no 2 was absent, the case was dismissed in default. A revision was filed against that order which has been allowed by the impugned order and the case has been remanded to the Additional S. D. M. with direction to decide the case from the stage at which it was dismissed in default.

(3.) IT was urged by the learned counsel for the applicant that once the case was. dismissed in default, it could not be restored as there was no provision of restoration in the Code and the impugned order was erroneous. The learned counsel for the opposite party, on the other hand urged that in fact 13th December, 1985 was not the date fixed when the case had been dismissed in default, as no notice was sent to the opposite party no. 2. From the Court of S. D. M. Kairana the case had been transferred to the Court of Additional S. D. M. Kairana about which no notice was served on the opposite party no. 2. It was clear from order sheet that firstly 9th December, 1985 was the date fixed which was adjourned to 16th December, 1985, but later on it was changed to 13th December, 1985, without any notice to the opposite party no. 2. Consequently it appears that without any notice to the opposite party, no. 2 who was the first party, the case had been dismissed in default. Under these circumstances the order in revision was correct and the case had correctly been remanded to the learned Magistrate and there was no mistake in the impugned order.