JUDGMENT
R.L. Gupta, J.
(1) This revision is directed against an order dated 7.11.90 of the Metropolitan Magistrate, Delhi by which he dismissed the complaint filed by the petitioner under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958. Section 65 of the Copy Right Act and Section 420 of the Indian Penal Code.
(2) Notice was not issued to the respondent because the Magistrate dismissed the complaint before the summoning of the respondent-accused.
(3) I have heard learned counsel for the petitioner.The law is settled that a Magistrate has no inherent power to restore a complaint once he choses to dismiss the same in default. However, it was laid down in the case of Major Gen A.S. Gauraya and another v. S.N. Thakar and another, 1986 Cri. Lj 1074 by the Hon’ble Supreme Court, “Unlike Section 151 Cpc, the Subordinate Criminal Courts have no inherent powers. In these circumstances, therefore, the learned Magistrate had, absolutely no jurisdiction to recall the order dismissing the complaint. The remedy of the respondent was to move the Sessions Judge or the High Court in revision.” It is, therefore, clear that the High Court in view of its inherent powers under Section 482 of the Code can set aside the order of dismissal of a complaint by the Magistrate if it is satisfied that either there was -sufficient cause for the non appearance of the complainant or that the presence of the complainant was not at all necessary on that date. In this case a perusal of the record of the Magistrate shows that he had sent the complaint to the police for investigation under Section 156(3) of the Code. He had also issued a general search warrant under Section 93 of the code for seizing objectionable materials wherever found. In pursuance to that order, Cbi had carried out search and recovered some objectionable material and also sought extension of time for recovering more. On that account, the petitioner complainant had moved an application for extension of general search warrant on 5.10.90. It was listed for arguments on 6.11.90 and then adjourned to 7.11.90. The submission of learned counsel for the petitioner is that on 6.11.90 the counsel for the petitioner had submitted a photo copy of a reported case decided by this Court but the learned Magistrate had insisted that Journal in which that ruling was published should be produced for perusal in a day or two and that he was not even told that the matter had been listed in Court on 7.11.90. Without going into the merits of this submission, I am of the view that the learned Magistrate should not have dismissed the complaint in default on 7.11.90. By that time even the accused- respondent had not been sommoned. Therefore, the presence of the complainant on 7.11.90 was not even necessary specially when the complaint had been marked for investigation to the police and the application for extension of search warrant was pending disposal. In the case of Miss Lily Thomas v. V.K. Izuddin and another ;1974 Cri.LJ 734, the Madras High Court held, “there was no provision in the Code to compel the complainant to be present when the enquiry under Section 202 of the Code is conducted especially when the complainant has already been examined on oath.” I am in respectful agreement with these observations. In the present case the statement of the complainant could not be recorded because before holding any enquiry the Magistrate had forwarded the complaint to the police and had also to apply his mind on the aforesaid application for extension of search warrants.
(4) I am, therefore, of the view that the order passed by the Magistrate dismissing the complaint in default suffers from a material illegality. It is therefore, set aside and the complaint is restored. The Magistrate will henceforth proceed according to law.