H.N. Kapoor, J.
1. This revision has been preferred for setting aside the order dated 27-4-1974 passed by the Additional City Magistrate, Varanasi, in a case under Section 488, Cr. P.C. By this order he had rejected the application for setting aside his earlier order dated 26-3-1974 restoring the case under Section 488, Cr. P.C. which had been dismissed in default of appearance of Pramila Bai at whose instance the proceedings had been initiated.
2. Learned Counsel for the applicant has argued that the learned Magistrate had no jurisdiction to restore the proceedings which had already been dismissed in default on 25-3-1974 and the earlier order dated 26-3-1974 passed by the Magistrate was without jurisdiction. The revision should have been primarily filed against the order dated 26-3-1974 and not against the order dated 27-4-1974. In the prayer no doubt it has been prayed that the orders dated 27-4-1974 and 26-7-1974 passed by the Additional City Magistrate, Varanasi, be set aside. Learned Counsel states that there is a typing error and that 26-7-1974 has been wrongly typed instead of 26-3-1974.
3. The case has a chequered history. The application was filed under Section 488, Cr. P.C. in 1965. The matter was taken up to the High Court in reference which was decided on 7-4-1969. The High Court had remanded the case with certain directions. It appears that the case was dismissed in default of appearance on 25-3-1974 as the petitioner and her counsel were not present at the time the case was called out. The order shows that even the present revisionist was also not present. An application for restoration was moved on that very day on the ground that the petitioner had gone to call her counsel and had returned after 15 minutes when the case was called out and was dismissed in default. The learned Magistrate, therefore, ordered restoration on 26-3-1974.
4. Learned Counsel for the revisionist has argued that the Magistrate had no power to restore a case which was dismissed in default under Section 488, Cr. P.C. as the Section itself is self-contained, He has placed reliance on the case of Smt. Shyama Devi v. Sadan Sewak : AIR1953All380 in which it was held that a court could not order restoration of a complaint which was dismissed in default although it is possible to file a second complaint.
5. On the other hand learned Counsel for the opposite party has placed reliance on the case of Mst. Fatima v. Abdul Hamid AIR 1934 Lah 195 : 35 Cri LJ 1504 in which case a reference was allowed and the order of the Magistrate dismissing the petition under Section 488, Cr. P.C. by using the words that the accused (husband) was acquitted under Section 247, Cr. P.C. was set aside. That is a different matter and a revisional court can always set aside any order passed by the Magistrate. He has also placed reliance on the case of Kishan Lal v. Nand Lal .
In that case the Magistrate had restored his order dismissing the proceedings under Section 488, Cr. P.C. and the High Court refused to interfere in revision observing that the learned Magistrate exercised inherent power under Section 561-A, Cr. P.C. With respect, I am unable to agree with that view as the Magistrate could not have exercised powers under Section 561-A, Cr. P.C. which powers could be exercised only by the High Court. No doubt the circumstances of that case were that the order passed by the Magistrate dismissing the petition on an earlier date than the date fixed was such that the order itself could have been set aside in revision by the High Court.
6. Calcutta High Court has held in the case of Osmen Gani v. Tahuran-nassa Begum 1970 Cri LJ 634 (Cal) that benefit of Section 488 (6), Cr. P.C. cannot be given even to the husband in case he had already put in appearance, filed written statement but absented on a particular date of hearing. There is thus no doubt that the Magistrate himself has not got the power to set aside his order and the order of restoration was without jurisdiction.
7. But the order passed by the Magistrate dismissing the petition could have been challenged in revision on the ground of impropriety by Smt. Pramila Bai. There was enough material before the Magistrate and he could have decided the case on the basis of that material instead of dismissing the petition under Section 488, Cr. P.C. especially when it had been remanded by the High Court for that purpose. Pramila Bai could not file a revision because her restoration application had been allowed by the Magistrate. It is possible for this Court to interfere suo motu in revision and set aside the order dated 25-3-1974 in the interest of justice.
8. In the result the revision is technically allowed to this extent that the orders dated 26-3-1974 and 27-4-1974 passed by the Additional City Magistrate, Varanasi, are set aside but at the same time the order passed by the Magistrate dated 25-3-1974 is also set aside and the case is remanded to the Magistrate concerned to decide the case according to law after hearing both the parties.