1. This is a revision on behalf of the accused who was charged under Sections 323, 427 and 504, I. P. C, After the statement of the complainant was recorded and summons was issued to the accused, a date was fixed for evidence on which day the complainant was absent and the Magistrate dismissed the complaint under Section 259, Cr. P. C. Subsequently an application was filed by the complainant praying that the complaint be restored, on the ground that his absence was accidental. The Magistrate came to the conclusion that he had jurisdiction to review the order that he passed and directed issue of summons to the accused. It is this order of the Magistrate that is attacked in this revision.
2. The argument of the learned advocate for the accused is that there is no provision in the Criminal Procedure Code to restore a complaint which had been dismissed for default. It would appear that his case did not reach the stage of trial but at the first hearing when the case was posted for evidence the complainant absented himself. The trend of authorities has always been that where a complaint is dismissed under Section 259, Or. P. O. at this stage, before even the trial began, there can be no restoration of the complaint but the remedy of the complainant would be to file a fresh complaint because the jurisdiction of the Magistrate to take cognizance would be only on a complaint being filed under Section 190, Cr. P. C. and there is no express provision in the Criminal Procedure Code for restoration. We might herein refer to the case of Sait Sogmal v. Kamisetti Simhachalam 1936 Mad WN 752 (2) (A). We are, therefore, clearly of the opinion that the Magistrate was wrong in restoring the complaint and issuing summons to the accused.
3. The Magistrate has referred to a decision of the Bombay High Court reported in, In re, wasudeo Narayan : AIR1950Bom10 (B). In that case it would appear that evidence also had been taken by the Magistrate and after the stage of trial the complainant absented himself and the Magistrate discharged the accused and dismissed the complaint, later on restored it and went on with trial. There the learned Judges held that the order setting aside the order of discharge of the Magistrate was not illegal and it was not necessary that there should have been a de novo trial especially where there was no objection on behalf of the accused to the trial going on. That case, in our opinion, is distinguishable because in the case before us the case did not reach the stage of trial.
In a case where a trial has taken place, the complainant absents himself and the complaint is dismissed but the Magistrate restores the complaint and proceeds with trial the question would be whether the restoring of the complaint and proceeding with the trial would vitiate the trial It would only be regarded as an irregularity and not as vitiating the trial and such irregularity could be cured under Section 537, Cr. P. C, We, therefore, allow this revision and set aside the order of the Magistrate.