B.S.SINHA, J.

1. This reference under S. 438 of the Cr. P. C., 1898 (hereinafter to be referred to as the Code) has been made by Shri Sharda Prasad, Sessions Judge, Bhagalpur. By an order, dated 30-1-1973 S. N. P. Singh, J. as he then was, directed it to be heard by a Division Bench, as he was of the view that there was a, conflict between the decision in S. N. Dubey V/s. Devi Kant Jha, 1971 0 CrLJ 77 and the unreported decision, D/-26-1-1972, passed in Shital Prasad Singh V/s. Janeshwar Singh, Criminal Misc. No. 897 of 1970 (Pat) by Mr. Justice J. Narain. That is how the case is before us.

2. On 8th Dec., 1969, the opposite party, Budhan Mahto, filed a complaint petition before the Sub-Divisional Magistrate of Banka alleging offences having been committed under Ss. 144 and 379 of the I.P.C. Shri Surya Narain Sinha, 2nd Officer of Banka examined the complainant on solemn affirmation on the same day and thereafter passed an order for enquiry under S. 202 of. the Code by Shri S. N. Gupta, Magistrate, Banka, who submitted his report on the 30th May, 1970, stating that no prima facie case had been made out. On 13th June, 1970, the complainant filed a protest petition and the matter was placed before Shri P. Aind, 3rd Officer, Banka, who passed an order on 17th June, 1970, the relevant portion of which runs as follows:

"Cognizance under S. 397, I, P. C. is taken and case transferred to the file of Shri V. Topno, Munsif-Magistrate, 1st Class, Banka, for favour of Disposal."

Against this order, Kanhai Raut and others filed a petition before the learned Sessions Judge of Bhagalpur for making a reference to this Court for setting aside the aforesaid order.

3 During the hearing of this case, we considered it expedient to obtain a report from the District Magistrate of Bhagalpur whether there had been drawn up a distribution list of work of the Gazetted Officers at the Sub-Divisional level as contemplated under S. 17 (1) of the Code. In such circumstances, the case after being heard in part, was adjourned.

4. From letter No. 407, dated the 19th Feb., 1977 of the District Magistrate, Bhagalpur, it appears that Shri P. Aind, Deputy Magistrate and two other Magistrates, namely, Shri S. N. Singh and Shri. M. Baitha had worked in place of the Sub-divisional Magistrate in his absence and were vested with the necessary powers, it must, therefore, be held that Shri Aihd on the relevant date was successor-in-office of Shri S. N. Singh, 2nd Officer, Banka who in terms was the successor-in-office of the Sub-Divisional Magistrate. That being so, under the provisions of S. 559 (1) of the Code, Shri Aind en 17-6-1970 occupied the same office or Court that Shri S. N. Singh occupied on 6-12-1969 at Banka, namely, that of. the Sub-Divisional Magistrate. Shri Aind, therefore, was successor-in-office of Shri Singh before whom a complaint was filed or who had taken cognizance of offence on the basis of the complaint. I am, therefore, of the view that Shri And could pass an order under S. 203 or 204 of the Code in respect of such a case. (See Krishnadeo Prasad V/s. Mt. Budhni, 1965 1 CrLJ 58).

5. The learned Magistrate (Shri Aindl, however, on 17-6-1970, as I have quoted above, after taking cognizance, transferred the case to the file of Shri V.Topno, Munsif-Magistrate, 1st Class, Banka, for favour of disposal. It has been repeatedly held and pointed out by this Court that cognizance cannot be taken twice in the same proceeding. In a complaint case, it is only after cognizance is taken that the complainant has to be examined on solemn affirmation under S. 200 of the Code. Therefore, when Shri Sinha, after examining the complainant 6ft solemn affirmation on 8-12-1969, passed an order for enquiry under S. 202 of the Code he had already taken cognizance of the case. After such enquiry, the complaint Could have been dismissed under S. 203 of the Code if no sufficient ground for proceeding was made out. Conversely, however, if there were sufficient ground