JUDGMENT : This is an application in revision which is directed against an ORDER :dated the 12th August, 1971 by which cognizance was taken against the present petitioners for the offences under Sections 384/324/57, Indian Penal Code and the case was transferred to the file of Shri S.N. Sinha, Munsif Magistrate, First Class for disposal. 2. The short facts which have given rise to this present application briefly stated as follows. Suraj Prasad Sharma who figures as opposite party in this present revision filed a petition of complaint against the present petitioners in the court of the Sub-divisional Magistrate, Arrah on 22.4.70. After the filing of the complaint the complainant was examined on solemn affirmation by Shri C.N. Tiwary, Magistrate, First Class, Arrah. He has passed ORDER :for inquiry into the allegations made in the complaint and referred the matter for inquiry to Shri I. C. Jha, Sub-Deputy Collector, Arrah. It may also be mentioned here that on 25.4.1970 one Jata Mistri also filed a petition of complaint against Suraj Prasad Sharma, that is, the present opposite party. In the petition the petitioners have given the details of the allegations made by Suraj Prasad Sharma (opposite party) in his petition of complaint and also the details of the allegations made by the aforesaid Jata Mistri against Suraj Prasad Sharma. As it is not necessary for the purpose of determination of the point arising in this criminal revision, so it is not necessary to give here the details of those allegations. Shri I.C. Jha, the Magistrate who was entrusted with the inquiry which was obviously under Section 202 of the Code of Criminal Procedure (hereinafter to be referred as the Cede) submitted report and in the report he stated that it transferred from the local inquiry that the complaint of Suraj Prasad Sharma against the accused persons, that is, the present petitioners is Concocted and false and hence he suggested that the complaint may be dismissed. This report of his is dated 3-7-1971. 3. On 128.1971 Shri S. P. Sinha, acting for the Sub-divisional Magistrate on that day considered the aforesaid report and then he passed the impugned ORDER :. This impugned ORDER :can be divided into two parts. This report of his is dated 3-7-1971. 3. On 128.1971 Shri S. P. Sinha, acting for the Sub-divisional Magistrate on that day considered the aforesaid report and then he passed the impugned ORDER :. This impugned ORDER :can be divided into two parts. The first part deals with the consideration of the report of the inquiring Magistrate and he was of the view on a persual of the report that a prima-facie case was made out. The second part of the ORDER :is with regard to the taking of cognizance. The relevant portion in this respect as embodied in the ORDER :is as follows :- "Cognizance u/s 384/324/57 I.P.C. The case is transferred to the Court of Sri S. N. Sinha Munsif Magistrate 1st Class Arrah for favour of disposal." It is this impugned ORDER :against which this present revision has been filed, 4. At the time of the hearing the learned counsel for the petitioners substantially raised three points. The first submission is that the Magistrate on the materials before him, that is, the inquiry report ought not to have taken cognizance when the inquiring officer recommended for the dismissal of the complaint. As far as this matter is concerned, the learned Magistrate Shri S. P. Sinha did consider the report and applied his mind and for the reasons given in his ORDER :be thought it was a case where a prima facie case had been made out. 5. The second Submission is that the ORDER :of Shri S.P. Sinha was bad for two reasons. Firstly that he could not take cognizance afresh when cognizance had already been taken at the time when Suraj Prasad Sharma, the complainant had been examined. The second reason is that this ORDER :is bad because under Section 204 of the Code the Magistrate who can take cognizance only can issue process. There is no ORDER :for the issue of process in the impugned ORDER :and the Magistrate to whom the case was transferred could not be regarded as a transferee Magistrate within the meaning of Section 192 of the Code and as such he could not issue process. It was also urged in this connection that Shri S.P. Sinha could not be regarded as a permanent or temporary successor-in-office of Shri C. N. Tiwary, who had taken the cognizance. 6. It was also urged in this connection that Shri S.P. Sinha could not be regarded as a permanent or temporary successor-in-office of Shri C. N. Tiwary, who had taken the cognizance. 6. I have already stated above that when the complaint was filed, the complainant was examined by Shri C.N. Tiwary and then he referred the matter for inquiry and report to Shri J.C. Jha. This examination of the complainant by Shri C.N. Tiwary was obviously under Section 200 of the Code which lays down that a Magistrate taking cognizance of an offence en complaint shall at once examine the complainant and the witnesses present, if any, upon oath, These words clearly show that when a Magistrate examines the complainant then he does so after taking cognizance of the offence. I may also refer here in this connection to a decision of the Supreme Court in the case of (1) Jamuna Singh and others V. Bhadai Shah, reported in A.I.R. 1964 Supreme Court, page 1541 where also it was held that when on a petition of complaint being filed before the Magistrate he applies his mind for proceeding under the various provisions of Chapter XVI of the Code, he must be held to have taken cognizance of the offence mentioned in the complaint. But when, however, he applies his mind not for such purpose such as for the purposes of ORDER :ing investigation under Section 156(3) or issues a search warrant for the purpose of investigation, he cannot, be said to have taken cognizance of any offence. It was also held in that case that when a Magistrate had already examined the complainant under Section 200 of the Code then this examination proceeded on the basis that he had taken cognizance and in the face of this action it was not possible to say that cognizance had not already been taken when he had made the ORDER :to the Sub• Inspector to inquire in that case. It is, therefore, clear that cognizance had already been taken by Shri C.N. Tiwary when he examined the complainant, that is, the present opposite party and cognizance could not, therefore, be taken again. The learned Magistrate in the impugned ORDER :was not correct in saying that the cognizance was taken by him. 7. It is, therefore, clear that cognizance had already been taken by Shri C.N. Tiwary when he examined the complainant, that is, the present opposite party and cognizance could not, therefore, be taken again. The learned Magistrate in the impugned ORDER :was not correct in saying that the cognizance was taken by him. 7. Now the next question which arises for consideration is whether Shri S. P. Sinha could pass an ORDER :when he had not as explained above taken cognizance of the offence. Section 204 of the Code lays down that if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding. The wordings of this section, therefore, clearly show that the issue of processes under Section 204 can be only by the Magistrate who had taken cognizance. Shri S. P. Sinha cannot be said to have taken cognizance because the cognizance had already been taken by Sri C. N. Tiwary and, therefore under Section 204 of the Code Shri S.P. Sinha could not pass an ORDER :. I may also refer here in this connection to a Full Bench decision of this Court in the case of (2) Krishnadeo Prasad V. Mt. Budhni reported in A.I.R. 1965 Patna, page 1. The matter had been referred by a Division Bench to the Full Bench and two questions were formulated by the Division Bench in the aforesaid decision and one of these was whether an ORDER :under Section 203 or 204 of the Code can be passed by only that Magistrate who had taken cognizance of the offence on a complaint under Section 200. In that case it appears that the Magistrate who passed the impugned ORDER :had been vested with power under Section 17(1) of the Code and it was held by the Full Bench of this Court that it is the Magistrate taking cognizance of an offence on a complaint, on receiving the complaint when it is filed, who can pass an ORDER :under Section 203 or 204 in respect of that case, but his successor-in-office, either temporary or permanent, can also pass an ORDER :under those sections and the Magistrate to whom the case is transferred can also pass an ORDER :under Section 203 or 204 of the Code. A similar question came up for consideration before a Single Judge of this Court in the case of (3) S.N. Dobey and another V. Devi Kant Jha, reported in A.I.R. 1971 Patna, Page 15 where it was held that when the Sub-divisional Magistrate examines the complainant on solemn affirmation and refers the matter for inquiry to another Magistrate then this amounts to taking cognizance by the Sub-divisional Magistrate and no fresh cognizance could be taken by another Magistrate after receipt of the report. This decision was also in conformity with the decision of the Supreme Court reported in (1) (A.I.R. 1964 Supreme Court 1541) which I have referred above. It was also held that on reference to Sections 17(1) and 559 of the Code when there is no arrangement under Section 17 then the officer cannot be said to be the successor-in-office. Reference has also been made to a recent decision of the Supreme Court in the case of (4) Rajendra Nath Mahto V. T. Gangooly, Deputy Superintendent of Police, Purulia, reported in A.I.R. 1972 Supreme Court, 470 where it was held that the issue of process is a matter of judicial determination and before issuing process, the Magistrate has to examine the complainant and hence the issue of process has to be by the Magistrate, who has taken cognizance or by one to whom the case has been transferred and thus a Magistrate, who has neither taken cognizance nor is one to whom the case has been transferred cannot issue process. 8. In this present case, it may be mentioned that at the time of the admission and before that also report had been called for from the Sub-divisional Magistrate and the first report shows that on 22.4.70 i.e. the date on which the complaint had been filed Shri C.N. Tiwary, Magistrate, First Class, Arrah functioned as Sub. divisional Magistrate as per ORDER :s of the Sub-divisional Magistrate, Sadar, Arrah distributing work of business to him to do Sawalkhani work in absence of Sub-divisional Magistrate and Second Officer. The report also shows that the District Magistrate had vested the powers to take cognizance under Section 190 (1) (a) (b) and to transfer the cases under section 192 (2) of the Code along with the powers to make ORDER :s under Section 144 of the Code within the administrative jurisdiction of Sadar Subdivision, in the district of Shahabad. The report also shows that the District Magistrate had vested the powers to take cognizance under Section 190 (1) (a) (b) and to transfer the cases under section 192 (2) of the Code along with the powers to make ORDER :s under Section 144 of the Code within the administrative jurisdiction of Sadar Subdivision, in the district of Shahabad. It was also stated that Shri S. P. Sinha, that is, the Magistrate, who passed the impugned ORDER :as well as Shri C. N. Tiwary had both acted as Sub-divisional Magistrate in absence of the Sub-divisional Magistrate. Copies of the two ORDER :s had also been forwarded along with the report which show that under Section 37 of the Code powers under Sections 192 (2) and 190 (1) (a) (b) of the Code had been conferred by the District Magistrate on Shri C.N. Tiwary as well as Shri Shyam Prit Singh. 9. The learned counsel for the opposite party has submitted that although the impugned ORDER :was passed by Shri S. P. Sinha, he did not do so in his individual capacity, but he did so while acting in absence of the Sub-divisional Magistrate and that the ORDER :passed by Shri C.N. Tiwari, when he took cognizance was also an ORDER :which was passed by him when he was acting as Sub-divisional Magistrate and, therefore, both the ORDER :s should be deemed to have been passed by the Sub-divisional Magistrate and so the ORDER :cannot be said to be had at all. It is true that the report and the copies of the ORDER :s to which I have referred above do show that both these Magistrates had been vested with the powers but it is also clear from the subsequent report of the Sub-divisional Magistrate that the District Magistrate had not made any arrangement with regard to the business as contemplated by Section 17 (1) of the Code, but rather the Sub-divisional Magistrate had done so. I may now refer here to the provisions of Section 17 of the Code. Section 17 (1) lays down that all Magistrates appointed under Sections 12, 13 and 14, and all Benches constituted under Section 15, shall be subordinate to the District Magistrate, and he may from time to time, make rules or give special ORDER :s consistent with the Code as to the distribution of business among such Magistrates and Benches. Section 17 (1) lays down that all Magistrates appointed under Sections 12, 13 and 14, and all Benches constituted under Section 15, shall be subordinate to the District Magistrate, and he may from time to time, make rules or give special ORDER :s consistent with the Code as to the distribution of business among such Magistrates and Benches. This subsection is divisible into two parts. The first part lays down about the subordination of the Magistrates to the District Magistrate. The second part lays down that the District Magistrate may from time to time make rules or give special ORDER :s as to the distribution of business among Magistrates and Benches. In this case as I have already pointed above there had been no arrangement or issue of ORDER :or rule by the District Magistrate with regard to the allocation of work. Sub-section (2) of Section 17 lays down that every Magistrate other than a Sub-divisional Magistrate and every Bench exercising powers in a Subdivision shall also be subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the District Magistrate. This Sub-section, in my opinion, only lays down that every Magistrate is also subordinate to the Sub-divisional Magistrate subject to the general control of the District Magistrate, but the power of making rule or giving special ORDER :s with regard to the distribution of business has not been conferred on the Sub divisional Magistrate by Section 17 (2) of the Code. Therefore, it is clear in this case that although the two Magistrates had been vested with powers under Sections 190 and 192 of the Code, yet there had been no arrangement or allocation of business by the District Magistrate, but rather it was by the Sub divisional Magistrate. 10. The learned counsel for the opposite party has contended that the word appearing in Section 17 (1) is "may" and, therefore, it was discretionary with the District Magistrate to pass any rule or ORDER :with regard to the distribution of business and if he does not do so, the Sub divisional Magistrate can pass an ORDER :, but I do not think that Sub-section (2) confers such a power on Sub-divisional Magistrate. In my opinion, when there was no (Sic) rule or ORDER :as contemplated by Section 17 (I) of the Code, then Shri S. P. Sinha could not be regarded as successor in. In my opinion, when there was no (Sic) rule or ORDER :as contemplated by Section 17 (I) of the Code, then Shri S. P. Sinha could not be regarded as successor in. office permanent or temporary of the Sub-divisional Magistrate, Now a very similar question also came up for consideration in the Full Bench decision of Patna reported in (2) A.I.R. 1965 Patna, page 1 (Supra) and the observations of their Lordships in paragraph 8 are very significant- "Had there been no ORDER :under Section 17 (1) of the Code, the position might have been different. In view of this ORDER :, however, there is no escape from the conclusion that Mr. R. R. Prasad was put in charge of the work of the Sub-divisional Magistrate, including sawalkhani, in the absence of the permanent Sub-divisional Magistrate, and thus, for the time being, he was the successor-in-office of the permanent Sub-divisional Magistrate in respect of the general file, including sawalkhani." Shri S. P. Sinha, therefore, cannot be regarded as successor-in-office of the Sub-divisional Magistrate and so in view of this Full Bench decision of our High Court the impugned ORDER :is bad for the reasons already discussed above, and, therefore, it has to be set aside, but with this observation that it will be open for the Magistrate who can pass an ORDER :according to law to pass an ORDER :in the case after giving opportunity to both the parties to be heard in this respect. 11. The application is allowed on the line indicated above. Application Allowed