Judgment R.K.Choudhary, J. 1. This is an application on behalf of the complainant. According to him, on the 17th of November, 1958, an occurrence took place in which the opposite parties dismantled a hut belonging to the petitioner and removed its materials causing a damage of about Rs. 200.00 to him. He filed a petition of complaint before the Sub-Divisional Magistrate on the next day, and the opposite parties were ultimately put on trial. After recording evidence of certain witnesses for the prosecution, charges were framed against the opposite parties under Sec. 427 of the Indian Penal Code. After certain other steps were taken, the 7th of March, 1960 was fixed for further hearing of the case. On that date, the complainant was absent, and the learned Magistrate passed an order of discharge under Sec.259 of the Code of Criminal Procedure on that very day. On the 10th of March, 1990, the petitioner filed a fresh petition of Complaint, but the same was dismissed by the acting Sub-Divisional Magistrate as it was not the proper form for the petitioner to come after the case had resulted in acquittal of the accused due to his absence. After having failed before the Sessions Judge, the petitioner has come up to this court in revision. 2. The point urged by Mr. Sarwar Ali in support of the application is that there was no legal bar to the filing of a fresh petition of complaint after the dismissal of the previous one or the discharge of the accused on trial on the previous complaint petition. He has also urged that the order of discharge itself was illegal. In support of the latter contention, he has drawn my attention to Sec.259 of the Code of Criminal Procedure under which the magistrate passed the Order of discharge. It lays down that when the proceedings have been instituted upon complaint, and upon any day fixed for the hearing of the case the complainant is absent, and the offence may be lawfully Compound-able, or is not a cognisable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused, Thus, on the terms of the section itself, the accused could have been discharged only before the framing of the charge. In this case, as already stated, charges had already been framed against the opposite parties. In this case, as already stated, charges had already been framed against the opposite parties. Therefore, they could not be discharged under Sec.259 of the Code of Criminal Procedure, and the order of discharge is, therefore, absolutely illegal. 3. In support of the first contention, it has been urged that the order of discharge does not amount to acquittal, and the Sub-divisional Magistrate was wrong in observing that the accused had been acquitted in the case. The contention is well-founded. A discharge order, in my opinion, does not operate as acquittal and leaves the matter at large for all purposes of judicial enquiry. The defence of autrefois acquit has no application to the case, and, therefore, the Magistrate has jurisdiction to entertain a second complaint. 4. This is exactly the view taken by a Bench of the Bombay High Court in Emperor v.Amanat Kadar, AIR 1929 Bom 134. In that case, a proceeding on a second complaint was started by the Magistrate after he had discharged the same accused on the first complaint by the same complainant, on the same facts and in respect of the same alleged offence. The order of discharge had been made merely due to the absence of the complainant on the date fixed. Their Lordships held that cognizance could he taken on the second complaint and there was nothing illegal in doing that. 5. The same view was taken by the Madras High Court in Re Rudra Goud, 8 Cri LJ 208 (Mad). It was held in that case that a Magistrate, who has discharged an accused person under Sec.259, Criminal Procedure Code; can re-entertain a fresh complaint on the same facts. In Ramprasad V/s. Ganpatrao, AIR 1934 Nag 215 also, it was hold that where on the date fixed for hearing the complainant was absent and the accused was discharged under Sec.259 of the Code, the order of discharge did not preclude the Magistrate from proceeding with the case on a fresh complaint. 6. A Bench decision of this court in Bijoo Singh V/s. Emperor, 2 Pat LJ 34 : (AIR 1916 Pat 109 (2)) exactly covers the point. In that case, a complaint was filed before a Sub-Deputy Magistrate. After examination of the complainant, the accused were summoned. On a later date, some evidence was taken, and the case was adjourned. 6. A Bench decision of this court in Bijoo Singh V/s. Emperor, 2 Pat LJ 34 : (AIR 1916 Pat 109 (2)) exactly covers the point. In that case, a complaint was filed before a Sub-Deputy Magistrate. After examination of the complainant, the accused were summoned. On a later date, some evidence was taken, and the case was adjourned. On the next date fixed for hearing, the complainant was absent, and the Magistrate discharged the accused. A few days later, the complainant filed a fresh petition of complaint in the court of the Sub-Divisional Magistrate. The Sub-Divisional Magistrate examined the complainant, and issued process. It was contended that the Sub-Divisional Magistrate had no jurisdiction to entertain the complaint inasmuch as the order of discharge passed by the Sub-deputy Magistrate had not been set aside by any superior authority. This argument was repelled by their Lordships, who held that there is nothing in the Code to prevent a Magistrate from enertaining a second complaint alter an order of discharge by another Magistrate. There is another Bench decision of this court In Ram Narain V/s. Panachand Jain, AIR 1949 Pat 256 in which a complaint was dismissed under Sec.203 of the Code of Criminal Procedure after considering final report of the police, but before the dismissal the complainant had filed a protest petition which had not been disposed of. It was held that the protest petition could be treated as a fresh complaint and the Magistrate could take cognizance on it and could order a regular trial. In that connection, their Lordships pointed out that, although a previous order dismissing a complaint under Sec.203 of the Code is no bar to the institution of a fresh case against the same accused, still a new complaint in respect of the same offence should not be entertained unless there are exceptional circumstances, e.g. where new facts, which could not, with reasonable diligence, have been brought forward in the previous proceedings, are adduced, or there was some manifest error in the previous proceedings, or the previous order was passed on an incomplete record or a misunderstanding of the nature of the complaint. Applying the above principle to the present case, it appears that a fresh complaint petition was legally entertainable in this case also, because as already pointed out, the order of discharge under Sec.259 of the Code after the framing of the charges was illegal, and thus there was a manifest error in the previous proceeding. True it is that the above case was with respect to dismissal under Sec.203 of the Code, and not with respect to a case in which an order of discharge had been passed but, as pointed out by the Madras High Court in the case reported in 8 Cri LJ 208 (Mad), referring to the case of Emperor V/s. Chinna Kariappa Gounden, ILR 29 Mad 126, no distinction could be drawn between an order under Sec.203 and an order made under Sec.253 or 259 of the Code of Criminal Procedure. 7. On a consideration of the authorities referred to above, my concluded opinion is that, if an accused has been discharged due to the non-appearance of the complainant, a fresh complaint, on the same facts, by the same complainant against the same licensed is legally entertainable, and the accused could be put on trial on that complaint for the same offence. Applying the above principle of law, the Sub-divisional Magistrate in the present case should have ordered issue of processes under Sec.204 of the Code of Criminal Procedure and should not have dismissed the complaint in limine on the ground that the order of discharge had resulted in the acquittal of the accused persons. 8. The result, therefore, is that the application is allowed, the order of the Sub-divisional Magistrate is set aside, and the case is sent back to him with a direction to issue processes against the opposite parties under Sec.204 of the Code of Criminal Procedure.