B. N. Sinha, J.

This application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) is directed against the order dated 22.9.1982 passed by Sri S. I. Daudi, Judicial Magistrate, First Class, Patna on a complaint petition filed by Opposite Party no. 2, Abhai Kumar Prasad taking cognizance of the case under section 420 of the Indian Penal Code and directing issuance of summons to the petitioners.

2. A complaint petition was filed by Opposite party no. 2 on 7.4.1982 before the Chief Judicial Magistrate, Patna. Learned Chief Judicial Magistrate on the day ordered for putting up that complaint petition on 17.4.1982 as the complaint petition had been filed in late hours on that day. On 17.4.1982 a petition for time was filed on behalf of the complainant and the case was adjourned to 29.4.1982. On 29.4.1982 the Chief Judicial Magistrate made over the complaint petition to Sri S. I. Daudi, Judicial Magistrate, Patna under section 192 of the Code for inquiry and disposal. Sri S. I. Daudi thereafter examined the complainant on solemn affirmation and after perusal of the same and the documents filed by the complainant found that prime facie case was made ant under section 420 of the Indian Penal Code against the petitioners and he ordered for issuance of summons to them by his order dated 22.9.1982.

3. It is submitted by the learned counsel for the petitioners that the learned Chief Judicial Magistrate transferred the case under section 192 (1) of the Code to Sri S. I. Daudi without taking cognizance and thus contravened the mandatory provisions of section 192 (1) of the Code and hence Sri S.I. Daudi Judicial Magistrate has no jurisdiction to take cognizance of the case and issue process against the petitioners. There appears sufficient force in this contention on behalf of the petitioners.

Section 192 (1) of the Code reads as follows :

“Any Chief Judicial Magistrate may, after taking cognizance of an offence make over the case for inquiry or trial to any competent Magistrate subordinate to him.

It is evident from the reading of the section that the Chief Judicial Magistrate should make over the case for inquiry or trial to any Magistrate subordinate to him only after taking cognizance of the offence.

4. It has been held by the Supreme Court in Gopal Das Sindhi & others versus The State of Assam and another (A.I.R. 1961 Supreme Court, 986) that the transfer of the case contemplated under section 192 of the Code is only of cases in which cognizance of an offence has been taken. Of course in that case the Supreme Court was considering the provisions of Section 192 of the Code of Criminal Procedure, 1898. Section 192 of the Code of Criminal Procedure, 1973 contains similar provisions.

5. Order dated 29.4.1982 passed by the Chief Judicial Magistrate reads as follows:-

“Let the case be sent to Sri S.I. Daudi, Judicial Magistrate, First Class, Patna, under section 192 (1) of the Cr. P. C. for inquiry and disposal.”

There is nothing in this order to indicate that the Chief Judicial Magistrate made over the case to Sri Daudi after taking cognizance of an offence nor there is any thing to indicate so in order dated 7.4.1982 or dated 17.4.1982 mentioned above passed by the C.J.M. Thus, it is clear that the procedure adopted by the Chief Judicial Magistrate was against the provisions of this sub-section and was therefore illegal and without jurisdiction. Since the order making over the case to Sri Daudi was illegal and without jurisdiction, he could not take cognizance and issue process to the petitioners in the case on the basis of that complaint petition. Under the circumstances the order taking cognizance of the case and for issuance of process to the petitioners is illegal and without jurisdiction. On this ground alone the impugned order can be quashed.

6. Learned counsel for the petitioners, however, has further submitted that it is evident from the allegations in the complaint petition that the co