A Magistrate has jurisdiction to restore a complaint dismissed under section 259 of the Criminal Procedure Code, but only if the dismissal was due to a technical defect or irregularity and not on the merits of the case.

P. CHANDRA REDDY, J.

( 1 ) IN this case, the order of the Sessions Judge, Guntur directing further enquiry against all the accused is sought to be revised. The petitioners are accused 1, 7 to 9 in C. C. No. 201 of 1954 on the file of the Additional First Class Magistrate, Narasaraopet. A complaint was filed against them on 11-2-1954, against these petitioners and four others for offences under ss. 148, 326, 307 and 504, Penal Code, with the following allegations:

( 2 ) ON 8-2-1954, at about 7-30 P. M. a boy aged about ten years belonging to the family of the accused was answering calls of nature before the house of the complainant. The complainant advised the boy not to commit nuisance in front of the house and that he could go a little farther from the house for the purpose. Immediately all the accused who were inimically disposed to the complainant "came out of the house of the 5th accused with axes and sticks; formed into an unlawful assembly; abused the complainant in an indecent language and came against him to bear him". A-2 and A-3 were having axes in their hands and the rest armed with sticks. The 3rd accused raised the axe in his hand to strike the complainant, but the latter escaped and the blow fell upon A-1 a very old woman who was pouncing upon the complainant. A-1 then fell down. Then the second accused got enraged and attempted to kill him by striking on his head with the axe.

( 3 ) A complaint was sent by post and it reached the court of the Additional First Class Magistrate on 11-2-1954. A sworn statement of the complainant was taken on 19-2-1954. Therein he stated that, when he asked the grandson of A-5 who was answering calls of nature not to commit nuisance there, but to go a little farther away, A-1 to A-6 standing on front of their hoiuse indecently abused him. Then A-1 and A-2 went to him. A-2 attempted to beat him with an axe in his hand, but he escaped the blow and it fell upon A-1. Meanwhile A-3 came and beat him on his head with an axe and he fell down. A-4 beat him on his shoulders with a stick. A-5 and A-6 best him on his loins. Then A-7 to A-9 came on the scene and the complainant could not say on which part of the body A-7 to A-9 beat him.

( 4 ) THE case was taken on file by the Additional First Class Magistrate, Narasaraopet, against A-3, A-4, A-5 and A-6 for offences under Ss. 323 and 324, Penal Code. It was transferred to the Taluk Magistrate. Subsequently it was sent back to the same Magistrate who originally took cognisance of the case. Thecase was being adjourned from timeto time and it was finally posted to 16-7-1954. On that date, as the complaint was absent, the accused were discharged under S. 259, Criminal P. C. A fresh complaint was filed on the next day with the same allegation as in the first giving reason for his absence on the 16th. A statement of the complainant was again recorded on 19-7-1954. The complainant then stated that when he asked the grandson of the 5th accused go to a little farther from his house to ease himself, A-1 to A-9 came out of the house of A-5, A-2 and A-3 armed with axes and the rest with sticks, that A-3 attempted to cut him with an axe on his head and when he escaped the blow fell on A-1, the mother of A-5, when A-2 who was by his side beat him with an axe in his hand. Therest of the accused beat him on various parts of the body.

( 5 ) THE Additional First Class Magistrate thought tht the absence of the complaint was satisfactorily explained and there were sufficient grounds for entertaining the fresh complaint. But instead of saying, that the fresh complaint was taken on file he ordered the case to be "restored to file and re-heard". But what he seems to have meant was that the fresh complaint could be entertained only against A-3, A-4 and A-5 and A-6 against whom only the case was originally taken on file for offences is evidenced from what is contained in the docket. "taken on file under S. 324, Indian Penal Code, against A-3 and under S. 323, Indian Pen

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