J.P. Ramanna vs J. Nugabhushanam and Others

Viswanatha Sastri, J.—The question that arises for consideration in this Civil Revision Petition is whether when an application made to a Civil Court to make a complaint of an offence falling u/s 195 (1) (b) or (c), Code of Criminal Procedure is dismissed for default, an application to set aside Code is competent. I should have thought the dismissal under Order 9, Rule 9, CPC that the contention of the Petitioner was unarguable. A reference has been made to the! decision of Fall Bench m E.P. Kumaravel Nadar Vs. T.P. Shanmuga Nadar and Others, . All that the Full Bench decided was that if an application is made to a Civil Court u/s 476, Criminal Procedure Code, and the Court "grants or refuses to grant the application to prosecute a party to the suit or the witnesses before it, a revision has to be brought before the High Court u/s 115, Code of CPC and not u/s 439, Criminal Procedure Code.

There was a controversy about this point of procedure for some time and it was set at rest by this decision of the Full Bench. This case, however, has no application in considering the question whether an application to the action u/s 476, Code of Criminal Procedure dismissed for default can be restored by the Court under Order. 9, Rule 9, Code of Criminal Procedure Order 9, Rule 8, empowers the Court to climes a suit for default of the Plaintiff''s appearance and Order 9, Rule 9, CPC Cods provides that if a suit is dismissed under Order9, Rule 8, a fresh suit on the same cause of action barred, tout the Plaintiff might apply for an order to set aside the dismissal for default. There fence corresponding provisions in the Criminal Procure Code either authorising the dismissal for default of setting aside the dismissal of a complaint.

Under Section247 of the Code of Criminal Procedure the non-appearance of a complainant results in the acquittal of file accused and there is no question of setting aside the austral by an application to the same Magistrate. The dismissal'' of a complaint is no bar i a fresh complaint being held, it is argued that since the decision of the Bench above cited has held that Section 115 of the Code of CPC is applicable to revisions brought before the High Court from an order u/s 470 Code of Criminal Procedure the provisions of Section 141, Code of CPC are also, applicable. Sect-ion 141 Code of CPC applies only to original proceedings in the nature of 1 suits, such as, for example, probate and guardianship proceedings. It has been held both by the Judicial Committee arid by the High Courts that B. 141, Code of CPC , does not authorise the restoration of an execution petition dismissed for default, the remedy of the decree-holder being to file a fresh petition.

Therefore, if cannot be contended that Section 141, Code of Civil Procedure, applies to all proceedings initiated in a Civil Court, irrespective of their the character. A Court which is moved to make a complaint of an offence u/s 195 (1), Code of Criminal Procedure acts in the interests of public justice and not in the interests of the applicant or any of the parties to the suit. The absence of the applicant on the date fixed for hearing, is. therefore, no ground for dismissing the application for default and if an application is so dismissed there is nothing like the rule of repudiate or a provision similar to Order 9, Rule 9, CPC Code, to debar a fresh application.

For these reasons, I am of the opinion that Order 9, Rule 9, CPC has no application to the case and the petition was rightly dismissed by the Court below. The Civil Revision Petition is dismissed with costs of the 1st Respondent