ORDER

Desai, J. - The opposite party filed a complaint u/s 500, Penal Code, against the applicant in the Court of the City Magistrate of Banaras, who, without issuing a process, dismissed it on 28th June 1947 on the ground that it was too vague, but, at the same time, expressly left it open to the opposite party to file a fresh complaint. Accordingly on 2nd september 1947 he filed a fresh complaint on the same facts and the City Magistrate transferred it for trial to the Court of Mr. J. D. Shah. Mr. J. D. Shah again dismissed the complaint on 19th September 1947 without issuing a process and without going into the merits. His order was erroneous on the face of it and the opposite party got it set aside by the learned Sessions Judge in revision. The complaint went back to Mr. Shah for disposal but it was transferred from his Court, to that of Mr. M. M. Krishana. Mr. Krishana fixed 8th July 1948, for hearing evidence u/s 202, Criminal P. C. On that date the opposite party was absent and the complaint was once more dismissed by Mr. Krishana u/s 203, Criminal P. C. On 27th July 1948, the opposite party again filed a fresh complaint on the same allegations in the Court of the City Magistrate who transferred it for disposal to the Court of Mr. Srivastava where it is now pending. He has not issued any process against the applicant as yet.

2. The applicant applied to the District Magistrate that the proceedings on the fresh complaint were null and void because the order of 8th July 1948 had not been set aside in revision. The learned District Magistrate was not prepared to quash the proceedings and the applicant has come up to Court.

3. Section 190, Criminal P. C. is the section dealing with the jurisdiction of magistrates to take cognizance of an offence on a complaint etc. It says that a Magistrate "may" take cognizance of an offence on a complaint. Though the section is worded as if it were permissive, it does not appear that the intention of the legislature was to give discretion to Magistrates in the matter of taking cognizance of an offence on a complaint. It a complaint discloses a offence over which the Magistrate has jurisdiction and his jurisdiction over it is not barred by a statutory provision such as that contained in Section 195, Criminal P. C., he seems to be bound to take cognizance. There is nothing in the section to suggest that he can refuse to take cognizance. It may be that be will have no data on the basis of which he can decide whether to take cognizance or not, but it seems that even if there are some data, it is not open to him to refuse to take cognizance.

4. It is contended, on the basis of some authorities that a Magistrate may refuse to take cognizance of an offence on a complaint when a previous complaint on the same allegations was dismissed. The authorities have not stated in so many words that the previous dismissal of a complaint on the same allegations affects the jurisdiction of a Magistrate to take cognizance of the offence on a fresh complaint. Dicta in some authorities may suggest that it is really not a case of jurisdiction and that what is meant is that the Magistrate taking cognizance on the second complaint should dismiss it or quash further proceedings on the ground that the previous complaint had failed. Really, however, the objection can be only to the jurisdiction of the Magistrate, for once he takes cognizance of an offence and assumes jurisdiction over the subject-matter of the complaint, he is bound by the procedure contained in the Criminal P. C and I have not come across any authority laying down is so many words that he is free to depart from the procedure and dismiss the complaint or quash further proceedings even though the same cannot be justified by any of the provisions laying down the procedure. There is no statutory provision allowing a Magistrate to dismiss a complaint on the ground that a previous complaint on the same allegations was dismissed and the order of dismissal is sti