IMPORTANT POINT
It is now well settled that a second complaint n lie only on fresh facts or even the previous its only if a special case is made out.

ORDER

K. B. Navadgi, J. - This is a Criminal Petition under section 482 of the Code of Criminal Procedure (the Code for short) and directed against the order dated 4.3.1988 made by the learned Principal Sessions Judge, Gulbarga, in Criminal Revision Petition No. 65/85 on his file. By the order impugned herein, the learned Principal Sessions Judge dismissed the Criminal Revision Petition and confirmed the order dated 31.1.1985 made by the learned J.M.F.C., Sedam, in C.C. No. 153/3/81 on his file

2. The matter is in the orders list. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the State, who was requested to take notice of the petition and assist the Court. The record is perused.

3. Few facts that need to be mentioned to dispose of the petition are these:

The petitioner and respondents Nos. 1 to 6 herein were the complainant and A-1, A-2, A-3, A-4, A-5 and A-6 respectively in the Trial Court. They will be hereinafter referred to as such. The complainant lodged a complaint against A-1 to A-6 before the J.M.F.C., Sedam, alleging the offences punishable under sections 427 and 380 of the Indian Penal Code. The learned Magistrate took cognizance of the offences alleged and issued process to all the six accused persons. The six accused persons, in response to the process, entered appearance.

4. Under the First Schedule to the Code, the offence punishable under section 427 of the Indian Penal Code is non-cognizable and bailable. It is compoundable. The offence punishable under section 380 of the Indian Penal Code is cognizable and non-bailable. The learned Magistrate teak the complaint on his file in C.C No. 153/3/81 and proceeded to try the offences in accordance with the provisions contained in section 244 and onwards appearing in Chapter 19 of the Code.

5. The complainant examined himself and adduced the evidence of his witness. On 31.1.1985, to which date the case had stood adjourned for orders on charge, the complain ant was absent. It appears, there was request for time on behalf of the complainant, but the learned Magistrate, observing that there was no application to claim exemption from appearance of the complainant, proceeded to dismiss the complaint under section 249 of the Code. By the same order, he discharged all the accused persons of the offences alleged against them and directed the cancellation of their bail bonds.

6. The complainant made an application to the learned Magistrate under section 249 read with section 200 of the Code with a prayer to restore his complaint, dismissed for his absence on 31.1.1985, to file. The learned Magistrate by the order dated 2.7.1985 declined the request.

7. Thereafter, the complainant carried the matter in revision to the learned Sessions Judge. Gulbarga in Criminal Revision Petition No. 62/85.

8. The learned Sessions Judge held that the order of the learned Magistrate dated 31.1.1935, though expressly stated to be one passed under section 249 of the Code, was the one under section 245(1) of the Code. In the view he took, he held that the complainant ought to have assailed the validity of the order dated 31.1.1985 made by the learned Magistrate in a Revision Petition and that having not done so, it was not open to the complainant to file an application for restoration of the complaint under section 249 of the Code. In that view of the matter, he dismissed the Criminal Revision Petition. The complainant has brought this order of the learned Sessions Judge to this Court challenging it in this petition.

9. The question whether a Magistrate has jurisdiction or not to restore and revive the complaint dismissed for the absence of the complainant on a subsequent application of the complainant is no more res integra. It is concluded by the pronouncement made by the Supreme Court in Maj. Genl. A.S. Gauraya and another, v. S.N. Thakur and another1. The law laid down by the Supreme Court is to be found in Paragraphs Nos. 9, 10 and 11 of the judg