Manjula Chellur, J.
1. Heard the learned counsel for the appellant and so also the learned Counsel for the respondents.
2. It is not in dispute that a private complaint under Section 200 Cr.P.C to be filled for offences punishable under Sections 420, 465, 468, 471, and 474 of IPC against the respondents herein. The concerned Investigating Agency after investigation filed 'B' report. Challenging the same, a protest memo was filed by way of objection statement and the matter was listed for recording the evidence of the complaint and the witnesses if any on the objection statement. At that stage, when the matter was posted for evidence of the complaint on 7.6.2003 the complaint and his counsel were absent. The complaint was dismissed for default. Aggrieved by the same, the present appeal is filed.
3. Both the counsels submitted their arguments. The procedure that has to be followed is the procedure provided for warrant trial, definitely the stage of framing charges had not yet come. The question would be whether the dismissal of the complaint for default would amount to an order of discharge or acquittal in the given situation . This was a case where the accused was not yet served with the summons the matter came to be dismissed. Section 249 of Cr.P.C. explains the situation when discharge order could be passed in favour of the accused before framing of the charge due to the absence of the complaint. It clearly explains what are all the conditions the Court has to see when such order could be passed. Section 249 Cr. P.C. reads as under:
'249. Absence of complainant : when the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything herein before contained, at any time before the charge has been framed, discharge the accused.'
4. After going through Section 249, definitely it would contemplate a situation where the accused has already appeared and the matter was at the stage before framing the charge. Unless and until the accused appears in the case the stage of discharging the accused will not arise. That apart to consider whether the conditions contemplated under Section 249 are fulfilled or not, the accused had not, yet appeared in the present case. Even other wise if the complaint was dismissed for default after the appearance of the accused but before charges are framed, the conditions that are to be fulfilled are the offences alleged must be compoundable or it must be non- cognizable. Other wise the Court should proceed with the trial. If* either of the two are satisfied Section 249 can be applied. The complaint in this case was not even dismissed at the stage of exercising power by the Court under Section 203 Cr.P.C. Admittedly, the offences under Section 420 is cognizable and compoundable. Section 465 is non - cognizable and non-compoundable. Section 468 is also non-compoundable but cognizable. Section 471 is cognizable but non-compoundable and so also Section is cognizable but non- compoundable.
5. It is a situation where the Court cannot split up the charges and say majority of the offences could be taken into consideration for exercising the power under Section 249 Cr.P.C. The Court cannot split up the charges in such situation. In the present case, the order of dismissal is neither an order under Section 203 nor under Section 249 and Section 256 is not applicable as it pertains to warrant trial.
6. Under these circumstances, having regard to the powers of the Magistrate in view of Section 362 Cr.P.C the Magistrate could not restore the complaint filed by the complainant under Section 200 Cr.P.C. The only course open to the litigant would be to invoke inherent jurisdiction of this Court under Section 482 Cr.P.C. As a matter of fact, there is no bar for the complainant to institute another private complaint provided it is within the prescribed time of limitation . Even to get a right to file second complaint he has to seek the permission of the High Court. Under these circumstances, the best course would be to approach this Court under Section 482 Cr.P.C.
7. With these observations, the petition is disposed of reserving liberty to the appellant to approach this Court under Section 482 Cr.P.C.