A.N. Banerjee, J.
1. This Rule is directed against an order dated 19-2-1976 passed by the learned Additional Special Judge, Asansol. It appears that the learned Special Judge discharged the accused opposite parties on repeated negligence on the part of the prosecution to produce witnesses and also on the ground that title little evidence recorded in the case was insufficient to establish a prima facie case for framing a charge. After such order of discharge was made a fresh complaint was filed before the same learned Judge. But the learned Judge refused to entertain such fresh complaint on two grounds. His first ground was that he had no jurisdiction to entertain such fresh complaint and to proceed afresh against the accused opposite parties without any fresh distribution order from the Government. His second ground Was that in any case unless his earlier order of discharge was set aside by a superior court he was incompetent to entertain the fresh complaint.
2. Having heard Mr. Manas Ranjan Chakraborty, learned Advocate appearing on behalf of the petitioner and on a consideration of the materials before us we are of the view that the learned Special Judge was wrong in thinking that he was incompetent to entertain a fresh complaint in view of the earlier order of discharge passed by him. The said order of discharge was made Under Section 253(2) of the Cr. P. C., 1898 without entering into the merits of the case. Such being the position there was no bar in law for the complainant to file a fresh complaint and it would be within the competence of the learned Judge to entertain such fresh complaint and to proceed thereafter in accordance with the provisions of law. Therefore, so far as that part of the order of the learned Judge which lays down that he was incompetent to entertain a fresh complaint merely because there was an earlier order of discharge which required to be set aside by a superior court, must be set aside. In so far as the finding of the learned Judge regarding fresh distribution order from the Government is concerned we are of the view that he was right in view of the fact that the earlier order of allotment made by the Government came to an end when the order of discharge was followed by rejection of the application for revival of the case. Allotment order is made by the Government on the facts of the case placed before it. We do not know whether the fresh complaint as filed by the complainant contain fresh facts or not. In any event there should be a fresh order of allotment by the Government if the complainant wants to proceed with the fresh complaint.
3. In the result while we discharge the Rule, we make it clear that we are keeping it open to the complainant to file a fresh complaint after the fresh order of allotment is made by the Government before the learned Judge who would be competent to entertain such fresh complaint and to proceed in accordance with the provisions of law without the earlier order of discharge made by him being set aside by any superior court.
P.C. Bohooah, J.
4. I agree.