P.N. Bakshi, J.@mdashThis application u/s 482, Code of Criminal Procedure arises under the following circumstances :
Smt. Vijai Laxmi Khanna filed an application u/s 488, Code of Criminal Procedure on 18-11-1966. Several dates of hearing were fixed. Balkrishna absented himself. The learned Magistrate, there fore, ordered the case to proceed exparte against him. The exparte order was later on set aside. On 28-5-1973 Balkrishna again failed to appear before the Court. The Magistrate again directed the case to proceed exparte. Since the evidence in the case had already been concluded on the earlier dates of hearing, the Court ordered that 1-6-1973 be fixed for arguments. On that date the arguments were not heard and 7-6-1973 was again fixed for this purpose. Balkrishna appeared on 7-6-1973. He again moved an application for setting aside the exparte order. This application was directed to be put up on 28-6-1973 for disposal. On this date Sri Vijai Laxmi Khanna was not present when the case was called on for hearing. The Magistrate instead of deciding the application filed by Balkrishna dated 7-6-1973 for setting aside the exparte order has dismissed the application of Smt. Vijai Laxmi Khanna u/s 488, Code of Criminal Procedure. On the same date an application was filed on behalf of the wife for setting aside this order and for restoring the case to its original number. This application was supported by an affidavit. It was put up on 13-6-1973 for disposal. The application was allowed and the case was restored. Aggrieved by the order of restoration Criminal Revision No. 10 of 1974 was filed before the Sessions Judge, Varanasi.
2. It appears that the case was listed on several dates thereafter before the Magistrate. Balkrishna moved two applications before him on 11-10- 1973. In one application he prayed that the order dated 13-6-1973 be set aside. In the other application he prayed for permission to put in appearance. Both these applications were rejected by the Magistrate on 9-11-1973. Aggrieved thereby Criminal Revision No. 118 of 1973 was filed before the Sessions Judge, Varanasi.
3. In these circumstances, both the criminal revisions came up for hearing before the Sessions Judge, Varanasi. When the case was called for hearing before the Sessions Judge, Balkrishna again absented himself. His counsel was informed about the case but he did not come. The Court waited till 3.40 p.m. yet neither Balkrishna nor his counsel appeared before the Court. On 27-7- 1975 the Sessions Judge, Varanasi vide his order dated 23-7-1975 has dismissed both the revisions and has directed the Magistrate to give an opportunity to the parties to appear before him and to decide the case expeditiously. Aggrieved thereby, the instant application u/s 482 Code of Criminal Procedure has been filed in this Court by Balkrishna.
4. I have heard counsel for the parties at considerable length and have also perused the affidavits on the record.
5. Learned counsel for the petitioner has submitted that in view of the allegations in the complaint the Court at Varanasi had no jurisdiction to proceed with the case u/s 488, Code of Criminal Procedure. He has drawn my attention to the allegations in the complaint. It appears from the record that an objection as to jurisdiction was filed by the petitioner on 16-8-1967. The Magistrate concerned repelled this objection. He was of the view that the petitioner was married at Varanasi and was residing there and as such, the Varanasi Court had jurisdiction. Aggrieved by this order, a revision was filed by Balkrishna before the Sessions Judge, Varanasi. That revision was dismissed on 23-12-1968. The Sessions Judge was of the view that Balkrishna has his house No. 3/102 in Varanasi and that he resided there along with his wife. It makes no material difference if he for sometime lived at Calcutta. As such, the Sessions Judge was of the opinion that the courts at Varanasi had jurisdiction. I have perused the complaint also. There seems to be ample justification for the view which has been taken by the Magistrate and the Sessions Judge in its orders dated 16-8-1967 and 22-12-1967. It may be mentioned here that the order of the Sessions Judge, Varanasi dated 23-12 - 196 7 has become final between the parties. No revision or any other proceeding was filed in the High Court from this order. As such, the question of jurisdiction has already been finally decided about nine years ago. It is not open to the petitioner to re-agitate this question which entails consideration of facts.
6. Counsel for the applicant has next submitted that Section 488, Code of Criminal Procedure is complete in itself. There is no provision under that section which entitles the Magistrate to restore a case dismissed in default. Learned counsel has brought to my notice Section 488(6) Code of Criminal Procedure (old) and has submitted that an exparte order passed thereunder in the case of avoidance of service could only be restored on sufficient cause been shown. No power exist in the Magistrate to restore complaint dismissed in default under this section. From the narration of facts mentioned above, it is clear that 28-6-1973 was the date fixed for disposing of the application filed by Balkrishna for setting aside the earlier exparte order passed against him. This was not the date fixed for any other proceeding. On this date Smt. Vijai Laxmi Khanna could not appear at, the time when the case was called for hearing. From the record it appears that she had gone to call her counsel and by the time the counsel reached the Court, the case had already been dismissed in default. The same day an application was filed by the counsel for Smt. Vijai Laxmi Khanna explaining the circumstances and praying for the restoration of the case to its original number. This application was supported by an affidavit. It is to be noticed that since 28-6-1973 was not a date fixed either for arguments or for any other purpose except for disposing of the application of Balkrishna, the order of the Magistrate dismissing the case in default was clearly erroneous on the face of the record and without jurisdiction. It has therefore been rightly set aside by the Magistrate. Even if I accept the contention that the Magistrate had no power to restore the case to its original number, I think this is a fit case in which I shall interfere suo moto in the exercise of my revision-al powers and set aside the order dated 28-6-1973 in the interest of justice. In similar circumstances, a learned single Judge of this Court has also taken the same view vide
7. For the reasons given above, I do not find any merit in this application u/s 482, Code of Criminal Procedure which is hereby dismissed.
