S.K. Desai, J.
1. In this application the order of the learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Bombay, below application dated 15th October, 1979 in Case No. 60/W/77 stands impugned. By the impugned order the learned Metropolitian Magistrate rejected the application. The petitioner has in this application given details as to what transpired on 14th September, 1979. He has also set out in paragraph 4 what was originally observed. At that time according to the petitioner the learned Metropolitian Magistrate, then presiding over the 33rd Court has seen the dairy of the advocate and made the observations.
2. I find that a very surprising procedure is being followed by the lower judiciary including the Metropolitan Magistrate in Greater Bombay. For years and years the cases before them are kept pending and they do not even insist upon the prosecuting agency filing charge-sheets for the period as long as 11/2 year to two years. All that seems to happen during this period is that the Magistrate, and in most cases the Judicial Clerk goes on giving dates. However, thereafter on one day when the complainant and the Advocate are found absent the case is taken up and the complaint is dismissed. I do not think this method of disposal is at all proper or can be justified. Personally I feel very poorly of Magistrates who resort to this method to show disposal and equally poorly of Magistrates who dismiss the application for restoration when subsequently made. It is true that in this case the Advocate had not at that time filed his personal affidavit, but the Magistrate could have directed this being done. This also is not the ground on which the application has bee filed, that surely is not a ground on which the application for restoration can be dismissed. Knowing the method of working in the Metropolitan Magistrate, the fresh complaint will take another four to five years for disposal. There may be points of limitation to be considered in respect of the same. All that could have been avoided had the application, which in my opinion was required to be allowed, been allowed by the learned Metropolitan Magistrate, 33rd Court.
3. In my opinion the impugned order is improperly made and by this propriety the earlier order of dismissal which is prima facie improperly made is sought to be sustained. I also find something 'unusual' in the way in which a date was initially given, the papers subsequently transferred to another Court and a fresh earlier date given in the absence of the complainant's Advocate. In ordinary circumstances I would have had the matter further investigated, but I think the docket of the Chief Metropolitan Magistrate already is sufficiently overcrowded and it is not desirable to add to his workload.
4. In the result, justice will be done if the impugned order is set aside and the rule is made absolute. Accordingly, rule is made absolute in terms of prayer (a).
5. copy of this order to be brought to the attention of the Chief Metropolitan Magistrate and of the learned Metropolitan Magistrates concerned.