Judgment : ARUNACHALAM, J. ( 1 ) THE petitioners are the accused in C. C. No. 224 of 1986 pending on the file of the 10th Metropolitan Magistrate, Egmore, Madras. The prosecution against them was initiated on a private complaint preferred by the respondent, who is the Drug Inspector, Park Town, I Range, Madras. The respondent has alleged in his complaint that the petitioners have contravened Section 18 (c) of the Drugs and Cosmetics Act, 1940 which contravention was punishable under section 27 (b) (ii) of the said Act. ( 2 ) THE facts in detail need not be stated for in this petition filed under section 482, Cr. P. C. invoking the inherent powers of this Court only one contention, relating to the jurisdiction of the Court, has been raised. ( 3 ) MR. S. Chandar, learned counsel representing the petitioners submitted, that the learned Magistrate had discharged the petitioners under section 249, Cr. P. C. on 28. 12. 1987 holding as hereunder:complainant absent. No representation. A4 by proxy. Al company, A2 by proxy. Not taken to produce A3. Complaint is dismissed and accused is discharged under section 249 Cr. P. C. It is, therefore, contended, that the revival of the prosecution on 24. 3. 1988 by the learned Magistrate, on a memo filed by the respondent, was without jurisdiction. ( 4 ) I have heard Mr. B. Sriramulu, the learned Public Prosecutor representing the respondent. He contended that the offence alleged against the petitioners was not compoundable and, therefore, the learned Magistrate had no jurisdiction to discharge the petitioners under section 249, Cr. P. C. He placed for my consideration the decision of a Division Bench of this Court in Mappillaisami v. Muthuswami. ( 5 ) I have carefully considered the contentions of either counsel. There is no dispute that on 28. 12. 1987 the petitioners were discharged under section 249, Cr. P. C. and that the complaint was revived on a memo filed by the respondent. Though such a memo is not available in the case records forwarded to this court, the learned Public Prosecutor has placed before me a copy of the said petition which reads as hereunder: Petition filed for revival of case which was discharged under section 249 of Cr. P. C. on 28. 12. 1987. Though such a memo is not available in the case records forwarded to this court, the learned Public Prosecutor has placed before me a copy of the said petition which reads as hereunder: Petition filed for revival of case which was discharged under section 249 of Cr. P. C. on 28. 12. 1987. It is prayed that this Honourable Court may be pleased to revive the above case which was discharged under section 249, Cr. P. C. for the reason that no representation and steps were taken to procure accused 3 was made by the complainant. This petition was filed on 24. 3. 1988 nearly four months after the order of discharge. No specific reason has been given in the petition for revival of the case. The Division Bench (Mappillaisami v. Muthuswami) supra held as hereunder: It is undoubtedly true, as Burn, J. and King, J. said in Ponnammal v. Sadayi Ammal, 1933 M. W. N. Cr. 233 and Sogmal v. Simachalam, 1936 M. W. N. Cr. 148 respectively, that a Magistrate who has discharged the accused has no jurisdiction to set aside his order of discharge. The only course is to take fresh cognizance of the case on a proper complaint. That does not, however, in our opinion, mean that the same complaint upon which the Magistrate originally took cognizance cannot be extracted from the old file and used as a foundation for the new trial. To requires complainant to make a copy of the old complaint or draft a new one, so that it can be said that an independent complaint has been filed seems to us quite unnecessary. But the Division Bench was dealing with a case where soon after the order of discharge was made, the complainant appeared before Court and said that he had been inadvertently delayed and asked the Magistrate to again enquire into the matter. The Magistrate then examined the complainant and found that he had good cause for his absence and passed the order: Take the case on file under section 355, Penal Code, against accused 1 and under section 352, Penal Code, against accused 2 and accused 3. The Magistrate also gave the case a fresh number. The trial proceeded till its termination and all the three accused were sentenced to pay a fine. The matter was taken in appeal, and the appeal was also dismissed. The Magistrate also gave the case a fresh number. The trial proceeded till its termination and all the three accused were sentenced to pay a fine. The matter was taken in appeal, and the appeal was also dismissed. The revision which arose thereafter was considered by the Division Bench of this Court. The objection as to jurisdiction was taken up for the first time before the High Court. The Division Bench took note of the procedure adopted by the Magistrate and found that he had contended himself by ascertaining whether the complainant had justifiable reason for not appearing in Court at the hour at which the case had been posted and, therefore, the failure of the Magistrate to record a fresh sworn statement seemed to be a minor irregularity. The Bench also stated that the Magistrate had also satisfied himself that there was some substance in the complaint which justified his taking the case on file and proceeding with the trial, and so except for a technical compliance with the law, there was no purpose in again examining the complainant. Following the judgment of Jackson, J. in Venkatasubbu lyer v. Soundararaja Aiyangar, it was pointed out that the only irregularity lay in his (the Magistrates) failing to take his sworn statement". On the facts placed before Court, the Division Bench held that the accused was not prejudiced by this irregularity and further no objection had been taken until the revision case was filed before this Court. ( 6 ) THE facts in this prosecution are distinguishable. The respondent had not only given no reasons for his not having appeared before the trial Magistrate on the date when the case was posted for hearing and further the Magistrate too had not satisfied himself with that there was substance in the complaint which justified his taking the case on file over again and proceeding with the trial. It was eon tended by the learned Public Prosecutor, that the trial Magistrate had no jurisdiction to invoke the provisions under section 249, Cr. P. C. If that be so the respondent ought to have challenged the order before the revisional Court and not having done so and without satisfying the trial Court of the reason for his absence, he cannot have his complaint mechanically revived. The judgment of the Division Bench of this Court will not attract the facts in this prosecution. P. C. If that be so the respondent ought to have challenged the order before the revisional Court and not having done so and without satisfying the trial Court of the reason for his absence, he cannot have his complaint mechanically revived. The judgment of the Division Bench of this Court will not attract the facts in this prosecution. ( 7 ) SATHAR Sayeed, J. in S. Louis Raj v. Roslyn Rap had to consider the applicability of the law enunciated by the Division Bench of this Court in Mapillaisami v. Muthuswami (supra ). The learned Judge has observed as follows:it is this observation of the Bench of our High Court that is relied on by the learned counsel appearing for the respondent, and the counsel contends that the impugned order of the Chief Judicial Magistrate is legal and proper and there is no irregularity or illegality. I may state, when once the accused is discharged under section 249, Cr. P. C. , that order is a final order. The words final order was not found in section 369 of the old Cr. P. C. and the Bench of our High Court had occasion to consider only the old section 369, Cr. P. C. Under the new Code, section 362 prohibits interference when once there is a final order, I may state that the Magistrate has no power to set aside his own order of discharge, for, he becomes fuscous officio. He can entertain another complaint from the complainant and even to entertain a fresh complaint on the facts of the old complaint, a special case has to be made out by the complainant. In the present case, from the impugned order, it is seen that there is nothing to show that the complainant has made out a special case before the Magistrate nor does the order of the Magistrate spell out the same. ( 8 ) WHILE holding that the decision of the Division Bench will not attract the facts, in this prosecution, I agree with Sathar Sayeed, J. that the trial Magistrate has no jurisdiction to set aside his own order of discharge. In that view, c. c. No. 224 of 1986 on the file of the 10th Metropolitan Magistrate, Egmore, Madras, cannot be allowed to survive any longer. In that view, c. c. No. 224 of 1986 on the file of the 10th Metropolitan Magistrate, Egmore, Madras, cannot be allowed to survive any longer. This petition is allowed and all further proceedings in C. C. No. 224 of 1986 on the file of the 10th Metropolitan Magistrate, Egmore, Madras, shall stand quashed. Petition allowed.