Mohammad Noor, J.These cases along with Criminal Revisions Nos. 331 and 332 and Criminal Miscellaneous Case No. 36 of 1931 arise out of a dispute which has cropped up about the succession and possession of a certain mutt called Mudra situated within the Gobindpur police station of the Nawadah Subdivision in the district of Gaya and the properties appertaining to it lying in Gaya and Monghyr. The admitted mohunt of the mutt was one Tokhnarain Puri who died on 12th August 1930. The rival claimants to the gaddi are Prem narain Puri on the one hand and Raghunath Puri on the other.

2. The case of Premnarain Puri is that on the death of Tokhnarain Puri he was formally installed as a mohunt of the Mudra mutt which has also a branch at Dhondha, with the full approval and help of the Mohunt of Budhauli Ramdhan Puri. Some time in March 1931 he fell ill and went for treatment to Gaya. During his absence Raghunath Puri, who was only his servant, surreptitiously obtained possession of the key of the treasury and proclaimed himself mohunt of the mutt and since then, has been adopting various illegal methods to dispossess him (Premnarain Puri) from the mohuntship of the Mutt and the properties appertaining to it which are admittedly very valuable and are said to consist besides moveables landed properties yielding an income of Rupees 60,000 per annum.

3.The case of Raghunath Puri on the other hand is that he is the real mohunt who succeeded Tokhnarain Puri and that Premnarain Puri was his servant who fraudulently got his name entered in the collectorate register and has been posing himself as a mohunt. In short each of the two rival claimants asserts himself to be the real mohunt and calls his adversary a disloyal and dishonest servant who has raised a standard of revolt against his master. Each claims to have obtained peaceful possession of the properties and charges the other with attempts to dispossess him.

4. The litigation started with a petition sent by Premnarain some time about 8th March 1931 to the Superintendent of Police, Gaya, who deputed some constable to the Mudra mutt, and a police inquiry held in consequence of this petition led to the institution at Nawadah of a case u/s 107, Criminal P. C, against Raghunath Puri and others in which Mohunt Ramdhan Puri and his manager Dhaneshwar Prasad have also been impleaded as being the real persons at the bottom of the trouble and as helpers and abettors of Raghunath Puri. It is said by the police that when Premnarain Puri was installed as a mohunt he promised to make over the cash of the treasury to Ramdhan Puri, Premnarain backed out of his promise and therefore Mohunt Ramdhan Puri has become his enemy and has set up Raghunath Puri as a rival claimant to the gaddi of Mudra mutt and has been helping in dispossessing Premnarain Puri.

5. The case u/s 107, Criminal P.C., pending before the Subdivisional Officer of Nawadah is the subject-matter of Criminal Revisions Nos. 331 and 332 of 1931. In the meantime some associates and partisans of Raghunath Puri are alleged to have committed criminal trespass into a house at Nawadah appertaining to the Mudra mutt. They have been prosecuted u/s 455, I. P.C. and this case is also ponding before the Subdivisional Officer of Nawadah and an application to this Court for its transfer from the district is the subject-matter of Criminal Miscellaneous Case No. 36 of 1931. There was another case u/s 144, Criminal P.C., in respect of a village called Sukho Deora appertaining to the same mutt. One Maulvi Malik Mokhtar Ahmad claimed to have taken a lease of this village from Premnarain Puri and alleged disturbance by Raghunath Puri. The Subdivisional Officer of Nawadah by an order passed u/s 144, Criminal P.C., (which was made absolute on 27th May 1931) directed the men of Raghunath Puri to vacate the kutchery of the village. Since then proceedings u/s 107, Criminal P.C. have been started against the parties. I now come to the facts of the present case.

6. On 14th March 1931 one Ramdeo Singh a servant of Pram narain Puri, filed a petition of complaint before the Subdivisional Officer of Nawadah and, on this complaint and on the report of the police on that complaint the petitioners Raghunath Puri and others (including Ramdhan Puri and his manager Dhaneshwar Prasad) have been placed upon their trial. In these cases this Court is asked to quash the proceedings of the prosecution. It is necessary that I should deal with the facts of this complaint and the various steps taken by the learned Subdivisional officer rather in detail. The petition of complaint is in Hindi. It is against five persons only namely Raghunath Puri, Ramdhari Singh Baijnath Puri, Rajkumar Singh and Shankar Kahar, inhabitants of Mauza Mudra, Thana Gobindpur. The date of the occurrence is mentioned as 14th March 1931, the very date on which the petition was filed. It said that the complainant was a servant of Premnarain Puri who being indisposed had gone to Gaya for treatment.

7. In his absence the accused were causing undue interference in the Mudra mutt for which proceedings had separately been taken. Then it said that the complainant went to Mudra under the orders of his master. Seeing him, Raghunath Puri became very much annoyed and directed his servants to shoot him, on which the other accused persons chased the complainant. The complainant thereupon went to the police who were deputed there but they did not give him any help. The accused persons threatened the complainant. There is not one word in this petition which refers to any criminal offence having been committed by anybody except the five persons named in it and that also on the 14th March when there was a criminal intimidation and assault by chasing the complainant. There is nothing in this petition about criminal trespass or conspiracy. The names of Mohunt Ramdhan Puri and his manager Dhaneshwar Prasad are rot even suggested. However the Subdivisional Officer examined the complainant on oath, and in this examination the following are the only passages suggesting the commission of any criminal offence:

(1)During his (Premnarain Puris) absence Raghunath Puri entered into a conspiracy with the tenants and made preparations to dispossess Premnarain Puri.

(2)Raghunath Puri and others occupied the mutt at Mudra by force during the absence of Premnarain Puri.

(3)He (Raghunath Puri) and his colleagues are now changing the rent receipts granted to tenants by Mohunt Premnarain.

(4)They (presumably referring to Raghunath Puri and his colleagues not named) have also removed certain articles from the mutt. They have broken open one room by forcing the lock.

(5) They (perhaps again referring to Raghunath Puri and his men) have taken the key of the treasury in their possession.

(6) The story of intimidation and chase mentioned in the written complaint.

8. The learned Sub-divisional Officer referred the complaint to the police for investigation. The police treated the complaint as a first information, filled up the required forms, and investigated the case presumably under Ch. 14, Criminal P.C., and submitted a report in the prescribed form declaring the case to be false. The police found that what really happened was that the complainant with a few companions of his went on a taxi car to Mudra and wanted to enter the mutt. The gatekeepers did not allow them to enter and there was some altercation. The complainant magnified this into an occurrence. The police further stated that as the two parties Premnarain and Raghunath were fighting over the possession of the mutt, cases of this nature were likely to happen often. It is to be noted that the officer in charge of the police station investigated the case under the supervision of the Divisional Inspector and the Deputy Superintendent of Police and the final report was submitted under the orders of the Superintendent of Police.

9. In the meantime, on 31st March, the complainant had filed a petition expressing his suspicion against the police because the accused were helped by the Mohunt of Budhauli, and the latter and his men were fabricating false documents and changing receipts of the tenants. This was for the first time that the name of the Mohunt of Budhauli came in the proceedings. When the police report came the learned Magistrate was not satisfied with it and on 10th April 1931 wrote a note on the report and ordered a fresh inquiry. It will be desirable to mention that the police confined their investigation to the occurrence alleged to have taken place on 14th March 1931. They were apparently not wrong. First of all the petition of complaint, as I have already stated, made absolutely no mention of any criminal offence having been committed by anybody prior to the date of occurrence (14th March 1931), Secondly, even in the statement on oath of the complainant, the basis of the complaint is the occurrence of 14th March.

10. The series of incidents mentioned do not appear to be the basis of the complaint, because it was too indefinite and except Raghunath Puri no body was mentioned in connexion with them. Facts were not mentioned to enable the Magistrate to take steps on them. The complaint is defined in Section 4(h), Criminal P.C. "Complaint" means the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, etc. The written petition filed made absolutely no mention of anything else than the occurrence of 14th March and it is very difficult to construe the statements on oath as if they were made with a view to the Magistrates taking action on them. The learned Sessions Judge, when he was asked to refer the matter to this Court for the quashing of proceedings, was of opinion that the allegation of other incidents besides that of the occurrence of 14th March was not a complaint, and I agree with him. On reading the complaint and even the statement on oath the Police Sub-Inspector, whose investigation was supervised by the Inspector of Police and the Deputy Superintendent of Police, was not wrong in concluding that the complaint referred to the incident of 14th March only. I have said that the learned Magistrate wrote a note on the final report of the police. This note requires rather a detailed examination as its language and observations have been subjected to a severe attack by Sir Ali Imam who has appeared on behalf of two of the petitioners.

The learned Magistrate remarked:

that the investigation was not properly made, that it was a matter of common knowledge of everyone who was in touch with the administration of criminal justice in this country that complaints were usually exaggerated before they reached the police or the Court.

11. He then analyzed the complaint into following elements: (1) that Premnarain Puri is the Mohunt of Mudra; (2) that Raghunath Puri, his manager committed the theft of the key of the Mudra Treasury; (3) that Raghunath Puri and others conspired to oust Premnarain from his possession over the Mudra mutt and its properties; (4) that Raghunath Puri occupied the mutt at Murda and declared himself to be the Mohunt; (5) that he committed the offence of house trespass after having made preparations to cause hurt; that he and others made preparation to obstruct the lawful entry of Mohunt Premnarain in the mutt and (6) that on a certain date Ramdeo Singh, who entered the mutt on behalf of Premnarain Puri, was intimidated and chased away. He then found fault with the police for their having confined themselves to No. 6 only and not arriving at any finding on the other points. He then said:

The inquiry should be completed as early as possible and report should be submitted to me within a week. The atmosphere is surcharged with dangerous possibilities and still the police are taking months in the submission of their report.

12. This criticism of the police was in my opinion unjustified. The investigation was ordered on 14th March and the Police report which is dated 2nd April 1931 was submitted to the Subdivisional Officer by the Inspector on 6th April. In my opinion the investigation which was supervised by the Divisional Inspector and the Deputy Superintendent of Police did not take such an unusually long time as the learned Magistrate seems to think. The Magistrate further said:

I am sending a copy of my remarks to the S. P. and the District Magistrate for information. I would also request the S. P. to supervise the case personally if he can find time to do so, The matter is indeed very serious the property involved being worth lakhs and lakhs. It would be a fit case in which the highest police officer in the district may watch the proceedings himself.

13. Sir Ali Imam contends that in this note there are matters which were neither in the written complaint nor in the statement on oath nor in the police report and that the Magistrate introduced facts from his extra judicial knowledge and that by unduly criticizing the police and showing some warmth in the language the learned Magistrate practically hinted what the police was to do in the matter.

14. There is no doubt that this note contains matters which are not to be found in the records of the present case. The learned Magistrate had before him the written complaint of Ramdeo Singh, his statement on oath, his petition of protest and the police report declaring the incident of 14th March to be false. The learned Magistrate analyzed the "complaint filed." If he meant by the "complaint filed" the written complaint, hen it contained nothing except the incident of 14th March 1931. But if he meant the statement on oath even then there are certain matters in the note which are not to be found in that statement and in my opinion the learned Magistrate could with advantage have avoided the little warmth which he has shown in his note and which has created apprehension in the mind of the accused, At the same time in fairness to the learned Magistrate I must say that he did not introduce any extra-judicial information. It will be recalled that when Premnarain Puri sent a petition to the Superintendent of Police an inquiry was held and a report u/s 107, Criminal P.C. was submitted. That case was pending before the learned Subdivisional Magistrate and the facts contained in his note of the 10th seems to have been taken some from the report, some from the arguments in that case which was partly heard and discussed on 25th March 1931 and some from another criminal case which was being heard. In my opinion the learned Magistrate somewhat confused the facts which came to his knowledge in Section 107 case and in another criminal case with the facts of the present complaint and much cannot be made of this.

15. Though the learned Magistrate ordered a further inquiry (as he says) into the complaint in fact he ordered inquiries about incidents which though not the basis of the complaint were mentioned by the complainant leading to the occurrence of 14th March 1931. The police made further investigation and submitted a supplementary report on which the learned Magistrate on 4th May ordered the submission of charge-sheets against Raghunath Puri, Ramdhari Singh, Baijnath Puri, Rajkumar Singh and Shankar Kahar u/s 452, I. P.C., and u/s 452/114 against Dhaneshwar Prasad. Later on he ordered submission of charge sheet against Mahunt Ramdhan Puri of Budhauli also u/s 452/109, I. P.C. In these cases this Court is asked to set aside this order of palling of charge sheets and to quash the entire proceedings. Application to the Sessions Judge to refer the case to this Court were refused.

16. It is contended that as there was a complaint the learned Magistrate had no power to order the submission of charge-sheet and ought to have disposed of it u/s 203 and Section 204, Criminal P.C. Reliance has been placed upon the cases of Isaf Nasya and Others Vs. Emperor, . Emperor v. Haji Nur Muhammad AIR 1929 Bom. 72 and the observations of Jwala Prasad, J., in the cases of Rampabittar Singh v. Kasim Ali Khan 67 Ind.Cas. 499 and Ulfat Khan v. Emperor AIR 1928 Pat. 359 , In my opinion except for the observation in Rampabittars case 67 Ind.Cas. 499 none of the cases is an authority to show that the Magistrate in this case was not empowered to order a charge sheet.

17. First of all there is no provision for a charge-sheet in the Criminal Procedure Code. Charge sheet is a form provided under departmental rules of the Government presumably u/s 173(1)(a), Criminal P.C. That section requires the police to submit to a Magistrate empowered to take cognizance of an of fence on a police report--meaning a Magistrate empowered u/s 190 (b)--a report in the form prescribed by the Local Government. The Government have as it appears prescribed two forms. One is called charge-sheet to be used when the accused is sent up for trial and the other is called "final report" which is used when the accused is not sent up for trial. When such a report is received by the Magistrate empowered u/s 190 (b) he takes cognizance of the offence under that section. Even if the accused is not sent up, i.e., not a charge-sheet but a final report is sent, the Magistrate when he applies his mind to that report may take cognizance of the offence and if he wants to place the accused on trial he can issue his process. This he can only do u/s 204, Criminal P.C. Section 204 does not apply only when cognizance is taken on a complaint but also when cognizance is taken on a police report. This is the first section of Ch. 17 headed "Of the commencement of proceedings before Magistrates." A Magistrate empowered u/s 190 (a) and (b) can issue his process for compelling the appearance of the accused on the perusal of the police report submitted to him Hinder Section 173, Criminal P.C., declaring the case to be false. He can also do the same on perusal of the police report submitted to him after an inquiry u/s 202 in case of a complaint. In both the cases he will be acting u/s 204, the only section authorizing the Magistrate in any case to proceed against the accused. In one case, if the report is u/s 173, he will be disposing of that report, and. in the other case if there is a complaint he will be disposing of the complaint.

18. Now an order for submission of a charge-sheet may be an executive order or a judicial order. In the former category is the order which is sometimes passed by superior police officers and sometimes by Magistrates to their subordinates engaged in the investigation and before the final report is submitted u/s 173. It is an executive direction of an officer to his subordinate whether or not the accused should be sent up for trial. If the order is for submission of a charge-sheet it only means that superior officers direct the subordinate police officers to send the case for trial.

19. In the second category is the order which is passed by the Magistrate empowered u/s 190 (b) when disposing of a police report u/s 173, Criminal P.C. In my opinion it is an order u/s 204, Criminal P.C. It is nothing but a short way of saying:

I give you warrant to arrest the accused, send them up either in custody or on bail according to the nature of the offence.

20. It is a mode of issuing process for compelling the attendance of the accused which has come into practical use.

21. In this case there was a complaint sent to the police for inquiry u/s 202. The police had drawn up a first information on that complaint and submitted a report in the prescribed form. It is immaterial whether we hold this to be a report u/s 202 or Section 173, Criminal P.C. The Magistrate who had taken cognizance of the complaint was also empowered to take cognizance u/s 190 (b). He was empowered to order further inquiry. When the supplementary report came he had again full power to act u/s 204, no matter whether the report was u/s 202 or Section 173. The order for a charge sheet was practically a warrant u/s 204. If there was any technical irregularity it was rectified by the issue of warrants against the accused on 9th June 1931. In the Calcutta case referred to above the District Magistrate took cognizance of the case on a complaint and ordered the police to send up a charge sheet to another Magistrate (Sub-Divisional Magistrate) if the case was found to be proved. The police found the case proved and submitted the charge-sheet to the Subdivisional Magistrate of Nilphamari.

22. The result was that the complaint before the District Magistrate remained undisposed of, and the District Magistrate who was under the law bound to dispose of it either u/s 203 or Section 204 was deprived of the opportunity to do so. The High Court directed the District Magistrate to dispose of the complaint according to law. Similar were the circumstances in the Bombay case. There also the police of their own accord submitted a charge-sheet which was placed before a Magistrate other than the one who had taken cognizance of the offence on a complaint and the former held that the accused were not properly before him and discharged them. This order was upheld by the High Court. In these two cases the police submitted a charge-sheet on their own accord without having been directed to do so by the Magistrate before whom the complaint was pending.

23. In the present case it has been ordered by the Magistrate before whom the complaint was made and who had ordered the inquiry. The observation of Jwala Prasad, J., in Rampabitar Singh v. Kasim Ali Khan 67 Ind.Cas. 499 looks rather supporting the view urged by the learned advocate for the petitioners (Mr. Manohar Lal) that the Magistrate had no power to order a charge sheet. But a careful reading of the judgment will show that his Lordships decision was not so much based upon the powers of the Magistrate to order a charge-sheet as upon the facts and circumstances of that case. There, after an inquiry the police reported the case to be false.

24. The Magistrate ordered a charge-sheet. Then his Lordship observed that the basis of the Magistrates order was the police report which did not justify him in calling for a charge-sheet. No doubt his Lordship observed that no order for submitting a.charge-sheet could be made by the Magistrate. The Magistrate could only pass an order u/s 203 or Section 204, Criminal P.C., and therefore the order of the Magistrate was ultra vires. It is respectfully submitted that an order calling for a charge-sheet on a report u/s 202 when the police drew up a first information report is an order u/s 204, Criminal P.C., and in practice is an order for issue of process. If the Magistrate on a perusal of the police report submitted u/s 202, Criminal P.C., orders the issue of a warrant of arrest for the production of the accused I fail to understand why he cannot achieve the same object by ordering the police to send up the accused for trial. Then this judgment of Jwala Prasad, J., was prior to the amendment of the Criminal Procedure Code.

25. The new Section 190 (b) has been so amended as to authorize a Magistrate to take cognizance of an offence on any police report. Report of the police after an inquiry u/s 202, Criminal P.C., is after all a police report and comes within Section 190 (b). If the Magistrate is applying his mind to a report submitted by the police after an inquiry u/s 202, I think he is at one and the same time applying his mind to the facts of the complaint as well as to the facts disclosed in the report. Then again I see absolutely no reason why the police, when they got the complaint, could not treat the complaint as an information and act upon it independently of the magisterial orders. A written complaint signed by the complainant supported by a statement on oath made before a Magistrate is before the police. Why can they not treat it as a first information of a cognizable offence Supposing for instance a Magistrate receives a complaint of an offence of murder. He sends it to the police for investigation. Can it be said that if the police are satisfied that a man has committed murder they are not entitled to arrest him or to send him to the Magistrate Section 202 (2) says:

If an inquiry or investigation under this section is made by a person not being a Magistrate or a Police Officer, such person shall exercise all the powers conferred by this Code on an officer in charge of a police station, except that he shall not have power to arrest without warrant.

26. This clearly indicates that if the inquiry is held by a Magistrate or a police officer his power to arrest without a warrant remains intact. I respectfully agree with the view expressed by Mullick, J., in the case of Emperor Vs. Bhola Bhagat and Others, . In my opinion because a complaint has been sent to a police officer to investigate a case, it does not deprive the police of their rights to investigate a cognizable offence independent of the complaint. Nor do I think that if a Magistrate has taken cognizance of an offence on a complaint he is deprived of his power of taking cognizance of connected offences on a police report. The only thing which the law requires is a final disposal of the complaint lodged before a Magistrate; and this has been done in this case. As the learned Magistrate was empowered to take cognizance both on a complaint and on a police report and the complaint was pending before him, I am not prepared to set aside his order on this ground. It is not necessary that the Magistrate should always record under what provisions of law he was proceeding.

27. Now I take up the question whether the learned Magistrate had any material for the issue of a process. Ordinarily if the Magistrate has ordered an accused to be tried the trial must proceed. But when this Court is satisfied that an accused is being prosecuted without there being any material before the Magistrate for his prosecution, it will be abdicating its function if it did not interfere to stop patent injustice calling for a prompt redress: see Jagat Chandra Mazumdar v. Queen-Empress [1899] 26 Cal. 786. I wish to examine the case of each of the petitioners separately.

Mahanth Ramdhan Puri of Budhauli.

28. I will confine myself to the materials which were legally before the Magistrate. They were five in number; (1) the written complaint of Ramdeo Singh; (2) his statement on oath before the Magistrate; (3) the petition of protest by the complainant; (4) the first police report and (5) the supplementary police report. In the first three there is absolutely no mention of Mahanth Ramdhan Puri, not even an insinuation against him. In the fourth the only allegation against him is that he is a helper of Raghunath Puri and ho and his men are trying to change the receipts. It discloses an offence of fabricating false evidence. This statement was not supported by oath and at any rate has no connexion with abetment of house trespass and the material placed before the Court is so meagre and so indefinite that no action can be taken upon it. Then last is the supplementary police report. In this the accusations against the Mahanth of Budhauli are the following:

(1) That at his suggestion the manager Raghunath Puri was sent to Gaya from the Mudra mutt through the accused Ramdhari Singh. Premnarain Puri made over to him the key of his cash box and made over to him the charge of domestic affairs etc.; (2) it was decided at the instance of the Budhauli Mahanth to take Premnarain Puri to succeed him (Tokhnarain Puri). This being done the Budhauli Mahanth wanted certain concession from Premnarain Puri, one of which was that the treasure left behind by Mahanth Tokhnarain Puri should be made over to him, etc. After Prema-narain Puri went back on his promise to deliver the treasure of Budhauli Mahanth, ill-feeling arose between them but the latter did not give vent to his feeling and continued to be on friendly terms with the former although he cherished hatred for him and had been apparently on the look out to avenge himself upon him as best as he could. This hardly discloses commission of any offence. However objectionable the conduct of the Mahanth of Budhauli might have been--an attempt to make profit in the bargain and to get angry and vindictive when that attempt fails may be bad--but we are not moral preceptors. It is possible that this ill-feeling might have induced the Mahanth of Budhauli to give his help to Raghunath Puri, but every help to Raghunath Puri is not necessarily an offence; (3) that a case u/s 452, I. P.C. was instituted against Premnarain Puri by one Paro Dhanuk of Budhauli, a domestic servant of the Mahanth of Budhauli. The case was found to be (sic)alse. There seems to be an insinuation though not an assertion that the Mahanth of Budhauli was an abettor in the institution of this false case.

29. These can hardly be sufficient to place him upon his trial for abetment of an offence of house trespass in the mutt at Mudra. The learned Sessions Judge in his order refusing a reference to this case has said that there are insinuations against the Mahanth of Budhauli. In ray opinion no man should be placed upon his trial unless there is a definite assertion of facts against him which, if believed, may lead to conviction. Even if every word said against Ramdhan Puri is true, it will be impossible to convict him of abetment of house trespass.

Dhaneshwar Prasad

30. The only allegation against him is that he was present when Raghunath Puri took chaddar (a ceremony of assumption of Mahantship). First of all a ceremony of assumption of Mahantship by itself is not an offence. Then it is not clear where it was performed. Raghunath Puri was living in the mutt and in the petition of complaint he is described as a resident of Mudra. If one day he declared himself as the Mahanth or a rival of his master and Dhaneshwar was present at the occasion or even helped him in doing so, I do not think this can be said to constitute an offence u/s 452/114, I. P.C. It is to be noticed that the police suggested the prosecution of Ramdhan Puri and Dhaneshwar Prasad u/s 120-B, I. P.C. and they did not mention a word about their having abetted the offence of criminal trespass. The learned Magistrate was also for some time of the same view. The various conflicting orders which I find on pp. 1 and 2 of the supplementary report at the end of it changed one after the other show the difficulties the learned Magistrate felt in ordering the prosecution of these two men and in my opinion his earlier doubts were well founded.

Ramdhari Singh, Baijnath Puri, Raj kumar Singh and Shanhar Kahar

31. Excepting in the petition of complaint and in the statement on oath I do not find their names mentioned any where in connexion with any offence. In these they have been accused for the alleged occurrence of 14th March 1931 which was found by the police to be false, a finding which seema to have been acceptted by the Magistrate. I fail to under stand on what materials he has proceeded against them u/s 452, I.P.C.

Raghunath Puri

32. There are allegations against him in the complaint, in the statement on oath and in the supplementary police report which disclose the commission of some offence of house trespass by him. In my opinion his prosecution should stand. Mr. Manohar Lal contends that trespass, if any was of a civil nature. This is however a matter for trial. The prosecution of Ramdhan Puri, Dhaneshwar Prasad, Ramdhari Singh, Baijnath Puri, Rajkumar Singh and Shankar Kahar must be set aside. While I have ordered this I entirely appreciate the point of view of the learned Magistrate. Perhaps he felt what may be called a righteous indignation at the alleged conduct of Raghunath Puri possibly helped by the Mohanth of Budhauli. The circumstances before him showed prima facie that the former was in the wrong and there were insinuations also against the latter. We are however bound by law, and the circumstances may be capable of explanations. We have to administer the law as it stands and not as we like it to be. The legislature in their wisdom have provided procedure by which alone a man can be placed upon his trial. First of all a Magistrate must take cognizance of an offence and that he can do only in one of three ways: (1) on a complaint; (2) on a police report or (3) on his own information. Therefore there must be some material before the Magistrate showing that the accused has committed the offence. These precautions have been provided by the legislature in order to save persons from useless prosecution. No doubt in spite of them cases have occurred in which innocent persons have been convicted. On the other hand there are cases in which by the observance of procedure guilty ones escaped punishment but in spite of this we must administer the law as it stands, Cases are not rare in which we find our private feelings in sympathy with the accused but we have to convict and punish him. On the other hand we feel indignant at the conduct of certain accused but have to let him off. In this case it is my considered opinion that the learned Magistrate had nothing else in view but the maintenance of law and order in his subdivision. He ordered the prosecution of some men without there being any material before him and I feel it my duty to intervene.

33. Criminal Revision No. 275 is partly allowed and I direct the order of the Magistrate calling for charge sheets against Ramdhari Singh, Baijnath Puri, Rajkumar Singh and Shankar Kahar be set aside and they will be discharged from their bail. Raghunath Puri will be tried, but taking into consideration the various orders pissed by the Magistrate not in this case but also in connected cases and which I shall deal in Criminal Miscellaneous Case No. 36 of 1931 and without any reflection upon the learned Magistrate I think that in the ends of justice he should be tried by some other Magistrate. I transfer the case to the file of the District Magistrate of Gaya who will either try it himself or make it over to such other Magistrate competent to try the case as he thinks fit. Raghunath will remain on bail as already ordered by this Court, pending his trial. If required he will give fresh bail to the satisfaction of the District Magistrate.

34. Criminal Revision No. 276 of 1931 is allowed and the order of the submission of the charge-sheets u/s 452/114, I. P.C. against Ramdhan Puri and Dhaneshwar Prasad is set aside and they are discharged from their bail. This will not prevent their prosecution for any other offence in connexion with dispute for which material may properly be placed before a competent Magistrate.