Nagendra Prasad Singh, J.

This application in revision is directed against an order, dated the 13th November, 1971, passed by Shree P. Sinha, Sub-divisional Magistrate, Madhubani, by which he had taken cognizance of offence under section 153, 144, and 380 of the Indian Penal Code against the petitioners on the basis of a police report and transferred the case to Shree K.M. Agrawal, Munsif Magistrate. He had not, however, issued processes to the accused petitioners. It appears that, on the same day, on-receipt of the records, Shree Agrawal ordered for issue of non-bailable warrants of arrest fixing the 30th November, 1971 as the date for appearance of the accused persons. The petitioners have challenged the legality of the aforesaid orders on the ground that, under section 204 of the Code of Criminal Procedure, 1898 (here in after referred to as the Code) only the Magistrate taking cognizance of an offence can issue summons or warrant, as the case may be, to the accused.

2. Learned Counsel for the petitioners has submitted that the requirement of section 204 of the Code that only the Magistrate taking cognizance should issue process is imperative in nature and any violation thereof will nullify the proceedings taken subsequent thereto.

3. Under Section 190 (1) of the Code, a Magistrate may take cognizance of an offence either upon receiving a complaint of facts which constitute such offence or upon a report in writing of such facts made by any police officer, or upon information derived by him from any source other than a police officer. Section 192(1) prescribes that the Magistrate who has taken cognizance of an offence may transfer the case for inquiry or trial to any Magistrate subordinate to him. In section 192 no stage is prescribed when such case can be transferred for inquiry or trial, and that is why from time to time controversies arise as to whether the said power can be exercised only after issuance of process under Section 204 or even at a stage prior to that, soon after taking cognizance under Section 190(1) Section 190 and 192 occur in Chapter XV under the heading conditions requisite for initiation of proceedings and that Chapter contains provisions meant to be applicable to cases instituted on police-reports as on petitions of complaint, as the case may be. In Chapter XVI there are four sections which relate exclusively to case instituted on petitions of complaint under the heading "Of complaints to Magistrates". Section 204, which is relevant for the present case, occurs in Chapter XVII, headed as "Of the Commencement of proceeding before Magistrates". This section is applicable to cases instituted on police reports as well as on petitions of complaint.

4. The question whether only the Magistrate taking cognizance can issue process or his successor-in office, temporary or permanent, can also summon the accused was decided by a Fun Bench of this Court in Krishnadeo Prasad Vs. Mt. Budhnil where it was held that temporary or a permanent successor-in office of the Magistrate who had taken cognizance under section 190 could also issue process. That was a case instituted on a petition of complaint. A Similar question arose for consideration before the Supreme Court in Rajendra Nath Mahto Vs. T. Gangooly, Deputy Superintendent of Purulia'. There, a complaint had been filed and one Shree S.K. Ganguly, Magistrate, took cognizance of the offence and fixed a date for holding judicial inquiry. On receipt of the report of the judicial inquiry, however, one Shree S. Sarkar, Sub-divisional Magistrate, directed issue of process against the accused persons. The legality of the order of Shree S. Sarkar directing issuance of processes was questioned: The Calcutta High Court quashed the said order holding that cognizance of the' offence had been taken by Shree S.K. Ganguli, and as such, Shree Sarkar had no right to issue processes in view of section 204 of the Code. The said order of the High Court was affirmed by the Supreme