Sahai, J.:— This application by the accused is directed against an order of the 2nd Additional Sessions Judge of Hazaribagh.
2. The relevant facts may be shortly stated. The opposite party filed a petition of complaint before Mr. Muhammad Jamil Hasan, the Sub-divisional Magistrate in charge of Sadar Sub-division of Hazaribagh on the 8th September, 1980. The Magistrate Examined the complainant on oath, and ordered an enquiry to be made by the Mukhiya. On the 12th and 30th October 1960, the complainant filed protest petitions before the Magistrate for withdrawal of the inquiry from the Mukhiya. No null was passed. The Mukhiya submitted a rcpon dated the 4th November, 1960, which was placed for hearing before Mr. R.R Prasad, the Second Officer, on the 9th November, 1960, along with the protest petitions. By an order of that date, he dismissed the complaint under Section 203 of the Cr PC. The complainant opposite party filed an application for further inquiry in the Court of Session, and that application was put up for disposal before the 2nd Additional Sessions Judge of Hazaribagh. The learned Judge came to the conclusion that Mr. R.R Prasad had no jurisdiction to pass an order under S. 203 of the Code in respect of the complaint because it was filed before the permanent Sub-divisional Magistrate who had also taken cognizance of it. On this ground alone, he set aside Mr. Prasad's order, dated the 9th November, 1960, and directed further inquiry. The accused petitioner has come up to this Court against that order. The case has been placed before this Beneh on a reference made by a Division Bench. In the order of reference the learned Judges have formulated the points for decision as follows:
“1. Whether, in the facts and circumstances it this case, Second Officer Sri R.R Prasad could pass an order under Section 203 of the Cr PC as he did on 9-11-1960 during the absence of the Sub-divisional Magistrate?
2. Whether an order under Ss. 203 of 204 can be passed by only that Magistrate who has taken cognizance of the offence on a complaint under S. 200?”
3. I think that both the points can be considered together. Section 203 lays down that “the Magistrate before whom a complaint is made, of whom it has been transferred, may dismiss the complaint” Section 204 provides that a Magistrate, taking cognizance of an offence, may issue process if he is satisfied ??? there is sufficient ground for proceeding. It is clear, therefore, that a Magistrate to whom a complaint has been made, or a Magistrate to whom the case has been transferred, may dismiss the complaint, and it is only the Magistrate who has taken cognizance of an offence on the basis of a complaint who can issue process no other Magistrate can pass an order under S. 203 or 204 unless he can be held to be either permanently or temporarily a successor-in-office of the Magistrate before whom the complaint was filed or who took cognizance of an offence on the complaint. It is, therefore, necessary to consider in this case whether Mr. R.R Prasad was the successor-in-office of the permanent Sub-divisional Magistrate on the 9th November, 1960, a date on which the permanent Sub-divisional Magistrate was admittedly absent.
4. Section 13(1) of the Code empowers the State Government to place any Magistrate in charge of a Sub-division, and to relieve him of his charge. Sub-section (3) provides that the State Government may delegate its powers under the section to the District Magistrate. By Bihar and Orissa appointment notification No. 638-A, dated the 17th January, 1930, the State Government has delegated its power under S. 13 to all District Magistrates in the Province of Bihar and Orissa.
5. In exercise of the power conferred upon the District Magistrate under S. 190(2) of the Code, the District Magistrate of Hazaribagh, by an order communicated under Memo. No. 3079-80 L.S, dated Hazaribagh the 14th September, 1960, to the Officers concerned, empowered Mr. R.R Prasad to take cognizance under clause (a) or clause (b) of sub-section (1) of Section 190 in the absence of the Sub-divisional Magistrate. By the same order, he empowered Mr. R. R Prasad under section 192(2) to transfer a case for inquiry or trial to any other specified and competent Magistrate.
6. On the 21st September, 1960, the Deputy Commissioner (who is the District Magistrate) of Hazaribagh drew up a distribution list of work of gazetted officers of the Sub-divisional level at Hazaribagh. In this distribution list, he has not mentioned the section under which he has acted; but ??? seems manifest that he has acted under S. 17(1) of the Code. Against the name of Mr. Muhammad Jamil Hassan, Sub-divisional Magistrate, the first item is that he could be in charge of the Sadar Sub-division. Against the name of Mr. R.R Prasad, the first item reads: “Second Officer, S.D.O's work including sawalkhani during his absence.”
7. Had there been no order under S. 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. Section 559(1) of the Code runs:
“(1) Subject to the other provisions of this Code, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor-in-office.”
8. It follows from this sub-section that the successor-in-office is, for all intents and purposes, the Magistrate whom he has succeeded. That being so, the successor-in-office, for the time being, of the Sub-divisional Magistrate before whom a complaint is filed, or who has taken cognizance of an offence on the basis of a complaint, should be deemed to be the same Magistrate. He occupies the same office or Court. He can, therefore, pass an order under section 203 or 204 in respect of such a case.
9. Conversely, suppose a Second Officer, being temporarily in charge of the work of the Sub-divisional Magistrate in his absence, hears a; complaint, or takes cognizance of an offence on the basis of a complaint, the question may arise whether the permanent Sub-divisional Magistrate, on his return, can pass an order under S. 203 or 204) of the Code in respect of that case. It seems to me that he can certainly do so because he occupies the office which the Second Officer, when entertaining the complaint or taking cognizance of the offence, occupied.
10. Our attention has been drawn to an unreported decision of a Bench of this Court in Gopi Ram Jhunjhunwala v. Rameshwar Prasad (Criminal Revision No. 672 of 1957, disposed of on the 22nd December, 1959). In that case, the complaint was filed before the permanent Sub-divisional Magistrate who examined the complainant on solemn affirmation and sent the case for inquiry to an Anchal Adhikari. This Anchal Adhikari's report came up to be heard by Mr. A.S Choubey, the Second Officer on the 13th July, 1956, in the absence of the permanent Sub-divisional Magistrate, Mr. Choubey ordered, under section 204 of the Code, that summons should issue against the accused. The argument raised on behalf of the petitioners was that Mr. Choubey could not take action Under S. 204 of the Code in respect of a complaint, the offence alleged in which had been taken cognizance of by the permanent Sub-divisional Magistrate, The only argument which was advanced before the Bench in reply on behalf of the opposite party was that the permanent Sub-divisional Magistrate had not taken cognizance of the offence when he Entertained the complaint, examined the complainant on solemn affirmation, and directed an inquiry to be made. With great respect, their Lordships rightly rejected this argument. There cannot be slightest doubt that, when a Magistrate examines a complainant on oath and directs an inquiry to be made under S. 202 of the Code, he takes cognizance with a view to following the procedure laid own, in Chapter XVI. It seems to me, however, with the greatest respect, that the learned Judges were not correct in holding that, in the case before them, Mr. Choubey had no jurisdiction to pass an prefer under S. 204. Unless it was found that there was no order under S. 17(1) of the Code, appointing Mr. Choubey to be in charge of the work of the Sub-divisional Magistrate in his absence, it could (not be said that Mr. Choubey had no jurisdiction to pass the order which he did. To that extent, therefore, the decision is overruled.)
11. The learned Standing Counsel has also drawn our attention to Ram Krishna Sinha v. Emperor, AIR 1938 Cal 195. The views which I have expressed above receive considerable support from that decision. Mr. Braj Kishore Prasad, who has appeared on behalf of the opposite party, has, however, drawn our attention to some observations of Biswas, J. who has delivered the judgment of the Bench to the effect that the order of the Magistrate in charge of the Sub-divisional Magistrate's work in that case, whereby he transfer the case to himself, was defective but the ??? could be cured under S. 529(f) of the Code. I ??? not think that those observations have any application in the facts and circumstances of the present case.
12. Mr. Braj Kishore Prasad has referred to Mt. Sanjha v. Mt. Jaya, AIR 1958 Pat 74. In that case, the Magistrate, acting in the absence of the Sub-divisional Magistrate, issued process under S. 204, and transferred the case for disposal to a certain Magistrate; thereafter the Sub-divisional Magistrate recalled the order summoning the accused persons, and directed that the complaint be further inquired into. Their Lordships held that the Sub-divisional Magistrate's order was wrong because, though a Magistrate taking cognizance, may rescind the order in certain circumstances before the case has passed the stage of rescission of the order, e.g, after summonses have been issued, another Magistrate cannot do so. The facts of that case are clearly distinguishable. The point which arises for decision in the instant case did not arise for consideration in that case.
13. It seems to me that Mr. R.R Prasad could certainly pass the order under S. 203 of the Code which he did on the 9th November, 1960, in view of the fact that he was acting as the Sub-divisional Magistrate in his absence on that date. The first question formulated by the referring Bench is thus answered.
14. So far as the second question is concerned, the answer must be that it is the Magistrate taking cognizance of an offence on a complaint, or receiving the complaint when it is filed, who can pass an order under Ss. 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. A Magistrate to whom the case is transferred may also pass an order under S. 203 of the Code. In view of the opinion recorded above, the learned Additional Sessions Judge's order is clearly erroneous. It is, accordingly, set aside, and the application for further inquiry is remanded to the Court of Session for disposal on merits in accordance with law. In view of the great delay in disposal of this case, the parries must appear before the Court of Session within two weeks from today, and, after fixing a date within three weeks thereafter and giving an opportunity to the parries to be heard, the Judge, hearing the case, should dispose of it.
Ramratna Singh, J.:— I agree.
S.P Singh, J.:— I agree.
IH/V.S.B/D.V.C
15. Order accordingly.