JUDGMENT B.D. SINGH, J. 1. This application by the five petitioners under section 561 A of the Code of Criminal Procedure (here-in-after referred to as 'the Code') is directed against the order dated 28th September, 1970 passed by the Judicial Magistrate refusing to drop the proceeding for the offences under sections 147, 148, 379, 504 and 506 of the Indian Penal Code initiated against the petitioners and one Ganauri Mistri. In the prayer portion of the petition the petitioners have prayed to quash the proceeding and to pass such other order or orders as this Court thinks proper. 2. In order to appreciate the point involved in this application, it will be necessary to state briefly the facts. On 26th May 1969 Jagan Sao, opposites party no. 2, filed a petition of complaint before the Sub-divisional Magistrate, Biharsharif, for taking action against the petitioners and Ganauri Mistri. The allegation made in the complaint, in brief, was that on 17th May, 1969 at about 8 P.M. the complainant was irrigating his field with the help of rehat fitted in a well belonging to one Balmiki Pandey. At that point of time the petitioners along with Ganauri appeared there. Petitioner no. 1 abused and threatened the complainant and directed the other petitioners to take away the bullocks of the complainant on which petitioners no. 2 to 5 and Ganauri took away his bullocks the price of which, according to the complainant, was about Rs. 650/-. The complainant, thereafter, raised alarm hearing which several witnesses came and saw the occurrence. In the complaint he prayed for taking appropriate action against the accused. On that very day i.e. on 26th May, 1969 Shri S.K. Sinha, Magistrate 1st class, who was acting as Sub-divisional Magistrate on that date, examined the complainant on solemn affirmation as required under section 200 of the Code and referred the matter for enquiry under section 202 of the Code to Shri G.S. Thakur, Magistrate 2nd class, who sent his report on 21st August, 1969 mentioning therein that a prima facie case was made out against the accused persons. On 26th September, 1969 Shri S.B. Ojha, Magistrate 1st class, took cognizance against the accused persons, namely, the petitioners and Ganauri and transferred the case to Shri K.N. Prasad, Munsif Magistrate, for disposal. Ultimately, the case came to the file of Shri K.D. Sharma, Judicial Magistrate. On 26th September, 1969 Shri S.B. Ojha, Magistrate 1st class, took cognizance against the accused persons, namely, the petitioners and Ganauri and transferred the case to Shri K.N. Prasad, Munsif Magistrate, for disposal. Ultimately, the case came to the file of Shri K.D. Sharma, Judicial Magistrate. Before him a petition was filed on behalf of the accused person that the cognizance taken against the accused persons was not in accordance with law and in that view of the matter, the entire proceeding was bad and it should be dropped. The learned Judicial Magistrate, by the impugned order, refused to drop the proceeding. 3. Learned counsel for the petitioners has assailed the proceeding chiefly on the ground that Shri S.B. Ojha, Magistrate, was not acting as Sub-divisional Magistrate on 26th September, 1969 when he had taken cognizance. He had, therefore, no jurisdiction to examine the report submitted by Shri G.S. Thakur. It was next contended that by order dated 26th May, 1969 Shri S.K. Sinha, while examining the complainant on solemn affirmation, had already taken cognizance and therefore, the second cognizance taken by Shri S.B. Ojha was bad in law. 4. In this connection, learned counsel drew my attention to the order dated 26th November 1970, passed by this Court. The said order was passed before the case of the petitioners was admitted by this Court. Wasiuddin, J. had directed calling for a report from the Sub-divisional Magistrate, Biharsharif, on the point whether Shri S.B Ojha had been conferred power under section 17 (1) of the Code and whether he was acting for the Sub-divisional Magistrate on 26th September, 1969 and also whether Shri S.K. Sinha, Magistrate, was acting for the Sub-divisional Magistrate on 26th May 1969. Subsequently a report was received by this Court. From the report it appears that Shri S.K. Sinha, Magistrate was acting as Sub-divisional Magistrate on 26th May, 1969 but the report does not indicate that Shri S.B. Ojha was acting as Sub-divisional Magistrate on 26th September, 1969. The report says that there was no material on the record to show that Shri S.B. Ojha was acting as Sub-divisional Magistrate on that date. However, the report reveals that he had power to take cognizance under section 17 (1) of the Code and to transfer cases for disposal after he had taken cognizance himself. The report says that there was no material on the record to show that Shri S.B. Ojha was acting as Sub-divisional Magistrate on that date. However, the report reveals that he had power to take cognizance under section 17 (1) of the Code and to transfer cases for disposal after he had taken cognizance himself. On receipt of this report the case of the petitioners was admitted by this Court. On the basis of the said report learned counsel submitted that Shri S.B. Ojha had no power to transfer the case by order dated 26th September, 1969 for disposal to Shri K.N. Prasad, Munsif Magistrate. If that was bad Shri K.D. Sharma also could not proceed with the case against the petitioners. In my opinion, this submission of learned counsel is well founded. 5. Now I turn to consider the second point. In order to substantiate this point learned counsel has referred to a decision of the Supreme Court in Jamuna Singh & other vs. Bhadai Sah, AIR 1964 S.C. 1541 and has drawn my attention to paragraphs 8 and 9 of the judgment at page 1544 where their lordships held:– "It is well settled now that when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must he held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under S. 156 (3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence." Their lordships further held:– "This examination by the Magistrate under S. 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint." On the basis of the above observations learned counsel submitted that the order which Shri S.K. Sinha had passed on 26th May, 1969 amounted to taking cognizance against the petitioners and Ganauri Mistri. He referred to Chapter XVI of the Code which contains sections 200, 201, 202 and 203. He referred to Chapter XVI of the Code which contains sections 200, 201, 202 and 203. In that view of the matter, he submitted that even if Shri S.K. Sinha had referred the case for enquiry under section 202 of the Code to Shri G.S. Thakur, Magistrate 2nd class that would not show that he had not applied his mind and had not taken cognizance. Since by that order Shri S.K. Sinha had already taken cognizance, the second cognizance which Shri S.B. Ojha took against the petitioners by order dated 26th September, 1969 was bad in law. It is well established that if once cognizance is taken, the second cognizance cannot be entertained. In order to substantiate this point he has relied on a decision of this Court in S.N. Dubey and another vs. Devi Kant, 1970 P.L.J.R. 103, where B.P. Sinha, J. observed in paragraph 5 at page 104 that once cognizance of an offence was taken, there was no question of taking cognizance afresh. On that account also learned counsel urged that the order passed by Shri S.B. Ojha on 26th September, 1969 was not in accordance with law. In my view, the submission of learned counsel on this score also is well grounded. 6. It appears to me, however, that due to the above reasons the entire proceeding cannot be quashed. The order passed by Shri S.K. Sinha dated 26th May, 1969 is a valid order and that will be considered as having already taken cognizance against the petitioners and Ganauri Mistri and that is confirmed whereas the subsequent orders passed in this case including the order dated 28th September 1970 are quashed. The application is, therefore, allowed and the order passed by Shri S.B. Ojha dated 26th September, 1969 and the subsequent orders including the order dated 28th September, 1970 are quashed. The case is sent back to the Sub-divisional Magistrate, Biharsharif, to pass necessary orders on the basis of the order dated 26th May, 1969 and on the report of Shri G.S. Thakur which was received on 21st August, 1969, in accordance with law. Case remanded.