( 1 ) THE short question to be decided in this case is has the Magistrate Jurisdiction to revive the complaint which has been dismissed for default of appearance of the complainant and re-summon the accused who has been discharged under section 259 of the Code of Criminal Procedure ?

( 2 ) V. P. Dewan complainant had filed a complaint under section 500, Indian Penal Code, against Banarsi Dass Sethi and Raj Kumar Sethi and the Magistrate issued process against the acoussed. On February 13, 1967, which was one of the dates of hearing before the Magistrate, the complainant was about with the result that the Magistrate dismissed the complaint and discharged the accused under section 259 of the Code of Criminal Procedure and passed the following short order :-

"accused with counsel present. Complainant has not appeared despite reapeated calls. It is now 2. 15 P. M. The case is under section 500, Indian Penal Code, which is compoundable and noncognizable. The case is dismissed under section 259, Criminal Procedure Code. Accused are discharged. "shortly after the order had been passed the complainant appeared and made an application for restoration of the case, which was acc