KHASTGIR,J. - (1.) THE petitioner being aggrieved by the issuance of the process and also the order dated the 12th January, 1987 rejecting the prayer of the petitioner for dis ­charge under section 245 sub -section (2) of the Criminal Procedure Code had preferred this application under section 401/482 if the Criminal Procedure Code. On the 12th December, 1984 the complainant was present in Court and was examined. No other witness was present. After perusing the petition of com ­plaint and the recorded evidence the learned Magistrate was of the view that there were sufficient grounds for proceeding against the accused person under section 420 of the Indian Penal Code. However, on the 12th January, 1985 inasmuch as the complainant was absent on calls without tadbir and as the complainant was absent on repeated calls and inasmuch as the offence under section 420 of the Indian Penal Code being a compoundable one, the learned Magistrate under section 249 of the Criminal Procedure Code discharged all the accused persons. Thereafter an application was made on the 13th  February, 1985 by the complainant for revival of the case and after hearing the learned Lawyer of the complainant the case was revived to the original file and necessary summons were issued upon the accused person.
(2.) THE petitioner contended that the learned Additional Chief Metropolitan Magistrate ex ­ceeded his jurisdiction in passing such order by reviving the case and by issuing fresh pro ­cess against the petitioner, when by his final order dated the 12th January, 1985 the learned Magistrate discharged the accused person. Hence, under the Code, the learned Magistrate had no power to revive the case. The learned Lawyer appearing on be ­half of the petitioner relied upon the case of Maj. Gen. A.S. Gauraya and another v. S.N. Thekur and another1, which is also reported in 1986 Cr. L.J. 1074, where after issuance of the process against the accused directing them to appear before the learned Magistrate, then the learned Magistrate dismissed the com ­plaint for non -appearance of the complainant. After the complaint was restored to file reversing the order of dismissal the accused chall ­enged the order before the High Court. Being aggrieved the appellant in that case preferred an appeal for determination of the question as to whether the learned Magistrate enjoyed any inherent power not provided in the Code itself by revising such proceeding. The learned Judges of the Supreme Court were of the view that the Criminal Procedure Code did not contain any provision enabling the criminal court to exercise such an inherent power. The learned Judges after considering the case of Bindeswari Prosad Singh v. Kall Singh2 were of the view that the learned Magistrate had no such power. Following the said decision, Lilamoy Ghosh, J. in the case of Md. Mojnu Sheikh & Ors. v. Md. Zulfikar All Molla and another,3 held that where the complaint stood dismissed for non -appearance of the complainant in the court which was subsequently restored to file directing issue of process when such order was questioned in revisional juris ­diction of the High Court, the learned Judge following both the decisions of the Supreme Court of Maj. Gen. A.S. Gauraya and another v. S.N. Thakur (supra) and also the case of Bindeswari Singh v. Kali Singh (supra) was of the view that it was abundantly clear that in the Criminal Procedure Code there is no provi ­sion for restoration of a case. Applying the said decision relied upon by the learned Advo ­cate for the petitioner this court is of the view that the order passed by the learned Magistrate restoring the petition to file for revival is without jurisdiction. As a result that order is set aside. This, however, will not prevent the complainant from filing a complaint before the learned Magistrate in accordance with law, if the complainant is so advised.
(3.) THE case is thus disposed of.;