Case Note & Summary
The appellant, Vinod Manaklalji Saboo, filed a complaint against respondent no.1, Kishor Gopichandji Uke, which was dismissed under Section 256 of the Code of Criminal Procedure, 1973 (Cr.P.C.) by the learned Magistrate due to the absence of the complainant and his advocate when the case was called. The appellant contended that he and his advocate attended court shortly after the dismissal and prayed for restoration, but the Magistrate rejected the plea on the ground that there is no provision for restoration. The appellant appealed to the High Court. The High Court, relying on the decision in India Fintrade v. Cherry Fashions and ors reported in 2009 All MR (Cri) 1657, held that the Magistrate has the power to restore a complaint dismissed under Section 256 Cr.P.C. if the complainant appears shortly after dismissal and shows sufficient cause for absence. The court set aside the order of the Magistrate and directed restoration of the complaint on its original file, to be decided on merits. The appeal was allowed.
Headnote
A) Criminal Procedure - Restoration of Complaint - Section 256 Cr.P.C. - Dismissal for Non-Appearance - The Magistrate has inherent power to restore a complaint dismissed under Section 256 Cr.P.C. if the complainant appears shortly after dismissal and shows sufficient cause for absence. The view that there is no provision for restoration is erroneous. (Para 3) B) Criminal Procedure - Inherent Powers of Magistrate - Section 256 Cr.P.C. - The Magistrate is not functus officio immediately after dismissal and can recall the order if the complainant appears promptly and explains absence. (Para 3)
Issue of Consideration
Whether a Magistrate has the power to restore a complaint dismissed under Section 256 of the Code of Criminal Procedure, 1973 for non-appearance of the complainant, when the complainant appears shortly after dismissal and seeks restoration.
Final Decision
Appeal allowed. The order of the Magistrate dismissing the complaint under Section 256 Cr.P.C. and rejecting the restoration application is set aside. The complaint is restored to its original file to be decided on merits in accordance with law.
Law Points
- Section 256 Cr.P.C. dismissal for non-appearance
- restoration of complaint
- inherent power of Magistrate
- no express bar for restoration
