A Magistrate temporarily in charge of the work of the SDM, in the absence of the permanent SDM, is the successor-in-office of the permanent SDM and can exercise the powers and duties of the permanent SDM, including passing orders under Sections 203 and 204 of the CrPC.

Sahai, J.

1. 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 Tamil Hasan, the Subdivisional Magistrate in charge of Sadat Subdivision of Hazaribagh, on the 8th September, 1960. The Magistrate examined the complainant on oath, and ordered an inquiry 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 order was passed. The Mukhiya submitted a report dated the 4th November, 1960, which was placed tor 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 Sec.203 of the Code of Criminal Procedure. 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 Sec.203 of the Code in respect of the complaint because it wax filed before the permanent Sub-divisional Magistrate who had also taken cognizance of it. On this ground alone, he set aside Mr. Prasads order, dated the 9th November, 1960, and directed Further inquiry. The accused petitioner has come up to this Court against that order.

3. The case has been placed before this Bench 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 of this case, Second Officer Sri R.R. Prasad could pass an order under Sec.203 of the Code of Criminal Procedure as he did on 9-11-1960 during the absence of the Sub-divisional Magistrate?

2. Whether an order under Sections 203 or 204 can be passed by only that Magistrate who has taken cognizance of the offence on a complaint under Sec.200?"

4. I think that both the points can be considered together. Sec.203 lays down that "the Magistrate before whom a complaint is made, or to whom it has been transferred, may dismiss the complaint." Sec.204 provides that a Magistrate, taking cognizance of an offence, may issue process if he is satisfied th(sic) 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 Sec.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 Subdivisional Magistrate on the 9th November, 1960, a date on which the permanent Subdivisional Magistrate was admittedly absent.

5. Sec.13(1) of the Code empowers the State Government to place any Magistrate in charge of a subdivision, 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 Sec.13 to all District Magistrates in the Province of Bihar and Orissa.

6. In exercise of the power conferred upon the District Magistrate under Section 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 co