JUDGMENT Satish Chandra, J. - This is an application under Section 561-A of Cr. P.C. for quashing the proceedings pending against the petitioners in the court of the Honorary Special Magistrate, Rampur, under Section 420 I.P.C. In the alternative, it is prayed that this petition may be treated as a revision under Section 435 Cr.P.C. 2. Shri Ram Khelawan Pandey, on February 1, 1963, filed a complaint against the petitioners under Section 420 I.P.C. in the court of the Judicial Magistrate, Rampur. The complainant was examined in support of the complaint and it is alleged that some other witnesses were also examined. Summonses were issued to the accused for June 17, 1963. On this date the accused attended the court but, as the complainant did not turn up, the learned magistrate dismissed the complaint. 3. On July 16, 1963 Shri Ram Khelawan Pandey filed a similar second complaint and thereupon the magistrate again summoned the accused applicants for December 13, 1963. On this date again the complainant remained absent. The magistrate, consequently, dismissed this complaint also. 4. On December 17, 1963 Shri Ram Khelawan Pandey, for the third time, lodged the same complaint. Without examining the complainant or recording any other evidence the learned magistrate issued non-bailable warrants. Two of the petitioners, Dhanai and Amarjeet, were arrested at Sultanpur on January 4, 1964 and were produced in court on January 9, 1964. Against the order taking cognizance of the third complaint the petitioners went up in revision which was rejected on January 11, 1964 by the learned Sessions Judge of Rampur. Aggrieved they have come to this Court. 5. Learned Counsel for the petitioners has urged that a complaint dismissed on account of non-appearance of the complainant cannot be revived with the result that the accused cannot be proceeded against in the same proceedings. The complainant can file a fresh complaint but such a fresh complaint is a fresh case and cannot be treated as restoration of the original case. The decisions of the Hon'ble Mr. Justice Rabhubar Dayal in Bhagwan Sahai v. Moti Lal, 1952 ALJ 17 and of the Hon'ble Mr. Justice Brij Mohan Lal in Smt. Shyama Devi v. Sadan Sewak, 1952 AWR 17 support this contention. I find myself in agreement with these authorities. The decisions of the Hon'ble Mr. Justice Rabhubar Dayal in Bhagwan Sahai v. Moti Lal, 1952 ALJ 17 and of the Hon'ble Mr. Justice Brij Mohan Lal in Smt. Shyama Devi v. Sadan Sewak, 1952 AWR 17 support this contention. I find myself in agreement with these authorities. It has not been disputed that the magistrate issued non-bailable warrants without examining the complainant or making any enquiry into the third complaint. Presumably the magistrate has acted on the evidence in existence on the record of the first complaint filed on February 1, 1963. That evidence cannot be used as substantive evidence in the case of the third complaint. The order issuing non bailable warrants as against the petitioners and summoning them is liable to be set aside. The learned magistrate shall proceed in accordance with the law on the complaint filed on December 17, 1963. 6. The learned magistrate will I bear in mind the observation of Harries, C.J. made in the case of Panchu Das Bhowmi and others v. Asraf Ali, AIR 1948 Calcutta 129 to I the following effect: "If the complainant files a complaint, it is his duty to prosecute it. By a piece of bad luck he may fail to turn E up on one occasion and he may ask a court to hear a fresh complaint but when he fails to turn up on a second occasion, and the accused are discharged, a court should be very reluctant to entertain a third complaint......... There must be a limit to this sort of thing and that limit can be said to be reached when the accused were discharged for the second time." 7. As a result, the order issuing non-bailable warrants as against the petitioners is set aside and the case is sent back to the learned magistrate for proceeding in accordance with the law in I the light of the observations made I above.