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. b74 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, earned counsel states that there is a typing error and that 26. 7. 1974 has been wrongly typed instead of 26. 3. 1974. The case has a chequered history. The application was filed under section 488 Cr. P. C, in 1965. The matter was taken 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 non-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.
(3.) 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 self contained. He has placed reliance on the case of Smt Shyama Devi Vs. Sadan Sewak (A. I. R. 1953 Alld. 380) 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 .;