Judgment Birendra Prasad Sinha, J. On the 9th November, 1972, opposite party Mt. Lalwati lodged an information at Warisnagar police-station, alleging inter alia, that the petitioners had set fire to her dwelling house. Upon this, a case was registered by the police. On the 22nd November, 1972, she filed a protest petition before the Subdivision Magistrate, Samastipur, alleging that the police was not properly investigating the case and prayed that action may be taken against the accused persons (Petitioners) treating the protest petition as a complaint. On the 30th November, 1972, the Police submitted a final report stating that the case was false. It appears that on a number of dates the first informant (Mt. Lalwati) did not appear when, on 14. 1. 74, the learned Subdivisional Magistrate passed an order dismissing the protect petition. 2. After several months, i.e. on 25.5.74, opposite Party Mt. Lalwati hied a petition of complaint upon the same facts before the Chief Judicial Magistrate, Samastipur, as by that time the new Code of Criminal Procedure, 1973 had come into force. She stated there in that she was ill and, therefore, could not take steps in the case. Allegation was made of an offence under section 436 Indian Penal Code. She was examined on solemn affirmation. The Chief Judicial Magistrate referred the matter under section 202, Code of Criminal Procedure, to the Prakhand Vikas Padadhikari for investigation. A report was received stating that there was a prima facie case against the petitioners and, on the basis of the said report, the Chief Judicial Magistrate took cognizance against the petitioners under section 436, Indian Penal Code, on 8.7.74. The petitioners have assailed this order of the Chief Judicial Magistrate taking cognizance of the offence against them. 3. Shri Rajeshwar Dayal appearing on behalf of the petitioners submitted that the offence complained of was one under section 436, Indian Penal Code, which was exclusively triable by a Court of Session. In a case where the offence complained of was triable exclusively by the court of Session, any direction for investigation cannot be made by the Chief Judicial Magistrate who must call upon the complainant to produce all his witnesses and examine them himself on oath. Learned counsel referred to section 202 Code of Criminal Procedure, relevant portion whereof reads as under ; "202. Learned counsel referred to section 202 Code of Criminal Procedure, relevant portion whereof reads as under ; "202. Postponement of issue of process;(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Sec. 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made, (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the court of Session; or (b) where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under Sec. 200. (2) In an enquiry under Sub-section (I), the Magistrate may, if he thinks fit, take evidence of witnesses on oath; Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. Xx xx XX" I have looked into the complaint filed by the opposite party and, from reading it is manifest that the offence alleged to have been committed by the petitioners was one under section 436, Indian Penal Code. The case is, therefore, covered by proviso (a) to section 202 (1), Code of Criminal Procedure. It is obvious, therefore, that no direction for investigation by the Prakhand Vikas Padadhikari should have been given by the Chief Judicial Magistrate in the instant case. As the cognizance was taken on the basis of the report of the Prakhand Vikas Padadhikari, the same must be held to be illegal and without jurisdiction. 4. A similar question came to be considered by a Bench of this Court consisting of Shambhu Pd. Singh, J., and myself, in Cr. As the cognizance was taken on the basis of the report of the Prakhand Vikas Padadhikari, the same must be held to be illegal and without jurisdiction. 4. A similar question came to be considered by a Bench of this Court consisting of Shambhu Pd. Singh, J., and myself, in Cr. W. J.C. No. 681 of 19741, and by our judgment dated the 25th August, 1976, we held that where it appeared to the Magistrate that the offence complained of was triable exclusively by the court of Session, any direction for investigation by a police officer or any other persons should not be made. This provision has been inserted in the new Code. Clause (a) in the proviso to sub-section (1) of section 202 bars direction for investigation by the Police Or any other person, In such cases which appear to the Magistrate to be triable by a court of Session, he has himself to hold the inquiry. Such a change in the new Code appears to me due to the abolition of the commitment inquiry under it. 5. Learned Counsel further submitted that on the same facts a second complaint was not maintainable and the learned Chief Judicial Magistrate illegally took cognizance on the basis of the second complaint. It may be stated that protest petition flied by the opposite party had earlier been dismissed. In Pramatha Nath Talukdar Vs. Saroj Ranjan Sarkar, it was observed by the learned Judges as follows: "An order of dismissal under S. 203, Criminal Procedure Code, is, however no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence have been brought on the record in the previous proceedings, have been adduced. It cannot be said to• be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other persons should be given another opportunity to have his complaint enquired into." In the instant case, the protest petition bad been dismissed on account of nonappearance of the opposite party on several dates. It was stated by her in the petition of complaint that she had been seriously ill and, therefore could not do pairvi in the case. While entertaining the second complaint, the Chief Judicial Magistrate did not mention of any exceptional circumstances for doing so. In fact, no reference seems to have been made about the dismissal of the protest petition on all earlier occasion. In Rajendra Prasad Singh Vs. State through Ramdas Singh, it was held that entertaining a second complaint without assigning any reason was not proper. In the case of Pramatha Nath, Talukdar (Supra) it was observed that the exceptional circumstances under which a second complaint is entertained ought to be mentioned. That being so even though a second complaint is not barred, in the facts and circumstances of the present case, there was a gross abuse of the process of the court when the second complaint was entertained. The occurrence is said to have taken place on 8.11.72 and final report was submitted on 30.11.72 stating that the case was false. The opposite party does not seem to have taken the necessary steps for more than a year when her protest petition was dismissed on 14. 1.74. Again she woke up after more than four months and filed the second petition of complaint. In this view of the matter, the second petition of complaint should not have been entertained. It is not a case where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint, or it was manifestly absurd, unjust or foolish or where new facts had been brought on record. 6. For the reasons stated above, this application is allowed and the order dated the 8th July, 1974, passed in C.R.No. 912 of 1974, by which cognizance of the offence under section 436, Indian Penal Code, has been taken against the petitioners, is quashed and set aside. Application allowed.