Daitari Sahu vs Lokanath Baral and Others

A. Misra, J.—This application in revision has been filed against an order of the A. D. M. (Judicial), Cuttack, rejecting the application of the petitioner to restore Misc. Case No. 70 of 1965. In short, the facts are that the petitioner filed a petition u/s 476 Cr. P.C. before the trying magistrate in a disposed of case for proceeding against the accused who had been acquitted in a case on the ground that they had produced a forged document in support of their defence. That application was rejected. Thereafter the petitioner filed a similar petition u/s 476-A, Cr. P.C. before the A. D. M (Judicial), Cuttack. The said petition was registered as Criminal Misc. Case No. 70 of 1965, but the same was also dismissed on 1-2-66 as the petitioner was absent when it was called. The petitioner filed a petition for restoration of the Misc. case and the present revision is against the order of the A. D. M. (Judicial), rejecting the same.

The learned Counsel appearing for the petitioner contends that though there is no express provision in the Code providing for restoration of petitions comparable to the provisions contained in the CPC and though there is no provision comparable to Section 151 C. P.C., still there is judicial authority for the view that where the court finds that a final order has been passed without jurisdiction the court has inherent power to restore the same. For the present purpose it is not necessary to go into this question or consider how far such a contention is sustainable, and if sustainable to what extent and in what circumstances such power can be exercised by the court. The application u/s 476-A was filed before the A. D. M. (Judicial), Cuttack on the ground that it was a superior court to the court of the Magistrate in relation to proceeding in whose court the alleged offence is said to have been committed. Section 476-A contains two limitations for the exercise of the power by the superior Court. The power u/s 476-A can be exercised only where a subordinate court has neither made a complaint u/s 476 Cr. P.C. nor rejected an application for such a complaint. In the present case as admittedly the application u/s 476 Cr. P.C. was rejected by the learned magistrate concerned in relation to whose court the offence was committed, I do not think the A. D. M. (Judicial) could have taken any action u/s 476-A. Apart from this, Section 476-B is another hurdle in the way of the petitioner. It provides that where the subordinate court has made a complaint or rejected an application to make a complaint u/s 476 Cr. P.C., the remedy is by way of appeal u/s 476-B. Section 195(3) indicates the superior appellate court. An appeal from the court of the learned Magistrate concerned was competent to the court of session. The petitioner did not avail of this remedy, but approached the A. D. M. (Judicial) who had no jurisdiction to entertain the application. In any view of the matter there is no merit in the application. The revision is accordingly dismissed.