Sharfuddin and Coxe, JJ.
1. This is a Rule calling upon the District Magistrate of Burdwan to show cause why the order of the Deputy Magistrate, dated the 12th August 1908, reviving the case of the petitioner, should not be set aside.
2. It appears that the complainant in this case lodged his complaint on the 29th May 1908. He was referred to the Assistant Surgeon for examination of his injuries, and was directed by the Court to prove his case on the 19th June 1908, on which date his witnesses were not present. Then the case was fixed for the 9th July. On the 9th July, the case was dismissed under Section 203 of the Criminal Procedure Code by the Deputy Magistrate on the ground of the absence of the complainant's witnesses. We then find the complainant moving the District Magistrate on the 23rd July 1908, under Section 437 of the Criminal Procedure Code, on which the District Magistrate passed the following order: 'The non-appearance of the witnesses is due to the fault of the complainant who failed to take out process against them. I decline to order further inquiry.' We again find that, on the 12th August 1908, the complainant put in a petition before the Deputy Magistrate who had dismissed the complaint under Section 203 of the Criminal Procedure Code praying for a revival of his complaint. This Deputy Magistrate rather hesitated to pass any order on this petition, inasmuch as the complainant had already moved the District Magistrate for a further inquiry and the District Magistrate had refused to interfere in the matter. What the Deputy Magistrate says is this -' If the motion had not been made I would have passed necessary orders on this petition, but I think, as the present application is after the District Magistrate's order, it should go to him for orders. All I can say is that I see no legal objection to the revival of the case.' When the matter was thus referred to the District Magistrate he passed the following order on the 12th August 1908: 'This matter has nothing to do with me. I have already disposed of the petition of motion which was filed before me. The Deputy Magistrate must act on the petition filed before him according to his own discretion.'
3. It is clear, therefore, that the District Magistrate did not forbid the Deputy Magistrate to take action on the petition for the revival of the complaint. On the contrary, we find that the matter was left entirely in the hands of the Deputy Magistrate who was asked to exercise his own discretion in the matter. There is no doubt that the Deputy Magistrate who had dismissed the complaint under Section 203 of the Criminal Procedure Code could legally revive it after dismissal under Section 203. The only hitch that there was in the revival was the District Magistrate's order mentioned above, but the District Magistrate himself sent back the application of the complainant for revival to the Deputy Magistrate for him to pass any order that he thought fit and proper.
4. In these circumstances, we do not think that the Deputy Magistrate's order to revive the compliant was in any way illegal or ultra vires. We, therefore, discharge the Rule. Let the record be sent down without delay.