ANIL BASSI Vs. VISHNU DASS

JUDGEMENT

(1.) THE learned counsel for the petitioner relies upon Ajay Khurana v. M/s Anil Cloth House and another, 1998(3) RCR (Crl.) 232 : 1998(2) RCC 623, whereas the learned counsel for the respondent relies upon Major General A.S. Gauraya and another v. S.N. Thakur and another, 1988(1) Recent Criminal Reports 3. The submission of the learned counsel for the respondent is that once a complaint has been dismissed for want of prosecution, the Magistrate has no right to restore the complaint and the order of the Magistrate in rejecting the application of the petitioner for the restoration of the complaint is totally justified. The citation which has been relied upon by the learned counsel for the respondent is distinguishable on facts. The Hon'ble Supreme Court was considering an issue whether the Magistrate has inherent power to pass an order for the restoration of a complaint and in that light the dictum of the Hon'ble Supreme Court was in the negative. So far as the citation which has been relied upon by the counsel for the petitioner is concerned, it has applicability to the facts in hand as the Magistrate dismissed the complaint under Section 138 of the Negotiable Instruments Act of the petitioner at the early hours even against the directions of the High Court Rules and Orders. He ought to have waited for the complainant. The preliminary evidence had already been recorded by the learned Magistrate and in these circumstances the only option left with the Magistrate was either to dismiss the complaint on merit or to summon the accused under Section 204 Cr.P.C. The observations of her Lordship are contained in para Nos. 1 and 3 of the judgment relied upon by the counsel for the petitioner which read as under :-

(2.) IN this view of the matter, the present revision succeeds. The orders of the learned Magistrate dismissing the complaint as well as the application for restoration of the complaint are set aside and the Magistrate is directed to proceed further and pass a legal order thereon after giving a right of hearing to the lawyer of the petitioner. The revision stands allowed.