S. BHATTACHARYA J. ( 1 ) IN this rule the petitioners ask for quashing of the proceedings against them in C. R. case No. 294 of 1980 pending in the court of the learned Sub-division Judicial Magistrate Arambagh. ( 2 ) THE facts leading on to the instant Rule are short and simple. Upon a complaint of the opposite party, No. 1 filed before the learned Sub-Divisionsal Judicial Magistrate, Arambaah a case under section 379. Indian Penal Code, being C. R. Case No. 648 of 1979, was started against the present petitioners. In the above case, the petitioners appeared before the learned Magistrate in obedience to processes issued against them but ultimately they were discharged under section 245 (2), Criminal Procedure Code, 1974 as the opposite party No. 1 remained absent, on two consecutive dates of hearing. Thereafter, on the same facts, the opposite party No. 1 filed a fresh complaint before the learned Sub-Divisional Judicial Magistrate, giving rise to C. R. Case No. 294 of 1980. Being aggrieved by the institution of the fresh proceeding, the petitioners moved this court in revision and obtained the present Rule. ( 3 ) THE sole question falling for determination in this Rule is whether, after the discharge of the petitioners in C. R. case No. 648 of 1979, a fresh complaint against them on the self same facts could be legally entertained by the learned Magistrate. ( 4 ) NONE appears for the opposite party No. 1 inspite of service of notice. ( 5 ) MR. Moitra appearing in support of the Rule vehemently argues that since the petitioners were discharged in the earlier case, a fresh complaint on the same facts could not be entertained by the learned Magistrate unless the order of discharge was set aside by a superior Court. In support of his argument strong reliance has been placed by Mr. Moitra upon the decision of the Supreme Court in the case of Pramata Nat v. Saroj Ranjan1. ( 6 ) IN the case under reference, a complaint was dismissed under section 203 of the code of Criminal Procedure 1898 and the question arose whether, after such dismissal a fresh complaint on the same facts could be entertained by the Magistrate. Moitra upon the decision of the Supreme Court in the case of Pramata Nat v. Saroj Ranjan1. ( 6 ) IN the case under reference, a complaint was dismissed under section 203 of the code of Criminal Procedure 1898 and the question arose whether, after such dismissal a fresh complaint on the same facts could be entertained by the Magistrate. There was a divergence of opinion between the learned Judges but the majority view was that although in order of dismissal under section 203 is no bar to the entertainment of a second application on the same facts, it will be entertained only in exceptional circumstances. e. g. where the previous order was passed on an incomplete record of a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not with reasonable diligence have been bought on record in the previous proceedings, have been adduced. It was further observed that under section 203, Criminal Procedure Code, the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if, any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding (Para 48 at page 398-399 ). ( 7 ) FROM the above observation of their Lordship it is thus manifestly clear that a dismissal of a complaint constitutes a bar to the entertainment of a fresh complaint on the same facts only where the Magistrate applied his mind to the materials before him to form the judgment as to whether or not there are sufficient grounds for proceeding. In other words the bar will not operate where the previous complaint was dismissed without application of mind by the Magistrate to the materials before him. The above decision therefore, does not come to the aid of the petitioners in view of the facts and circumstances of the present case where, as stated already, the petitioners were discharged not on merits but solely on the ground of the opposite party No. 1. ( 8 ) THE learned Sub-Divisional Judicial Magistrate relied upon certain decisions under the old Criminal Procedure Code of 189 to justify entertainment of the fresh complaint by the opposite party No. 1. ( 8 ) THE learned Sub-Divisional Judicial Magistrate relied upon certain decisions under the old Criminal Procedure Code of 189 to justify entertainment of the fresh complaint by the opposite party No. 1. In the case of Emperor v. Ananat Kadar2 a Division Bench of the Bombay High Court held that the discharge of an accused on account of the absence of the complainant and his. Pleader on the appointed date of hearing does not operate as a bar to the institution of second complaint against the accused on the same facts and the plea of autrefci acquit has no application to such a case. ( 9 ) IN the case of Sushil Kumar v. Banka Mahato3 a learned Single Judge of this Court held that where the trying Magistrate makes an order discharging the accused from the proceeding on the ground that they had no legal basis, the order of discharge does not in any way involve consideration of the merits of the case and is not one under section 253 (section 245 of the new code ). In that view, a fresh complaint re-agitating the matter before the Magistrate who made the order of discharge is not unsustainable. According to the learned Judge, there was no trial on tile merits to preclude the filing of a fresh complaint. ( 10 ) IN a latter case reported in 1970 I. L. R. (Cal.) 432 another learned single judge of this court held that if an accused is discharged by the Magistrate under section 259 (section 249 of the new Code) without application of mind to the merits of the case, such discharge would not constitute a bar to the institution of a fresh proceeding on the self same facts. ( 11 ) SINCE in C. R. case No. 648 of 1979 the order of discharge was passed not on merits and without application of mind by the Magistrate, it cannot operate as a bar to the entertainment of a fresh complaint by the Magistrate, on the same facts. ( 12 ) AS there appears to be no substance in the point raised by M. Moitra, the Rule stands discharged. The learned Magistrate is directed to dispose of the case with the utmost expedition. Revision allowed.