Bucknill, J.This was an application made to this Court in its Revisional Jurisdiction by two men Raghupat Narayan Singh and Daroga Singh. They ask this Court to set aside an order made on the 2nd January last by the Sessions Judge of Gaya who, upon an application made to him by the applicants, by his order confirmed an order passed on the 18th of December 1923 by the Sub-Divisional Officer of Jehanabad to the effect that the two applicants, with others, should be placed on their trial on various charges: these charges from the charge-sheet appear to be charges of offences punishable under the provisions of Section 147 (riot). 304 (culpable homicide not amounting to murder) and 325 (voluntarily causing grievous hurt).

2. It is contended by Counsel for the applicants that in view of what took place prior to the order of the Sub-Divisional Officer of the 18th December last, he (the Sub-Divisional Officer) had no power to order that the applicants should be charged and brought before him. It is important, therefore, to endeavour to ascertain exactly what actually took place prior to the Sub-Divisional Officers order of the 18th December last. It would appear from the record that on the 15th of October 1923 a disturbance of some kind took place at a village called Chhatai, and a first information report was lodged at Kurtha Thana by one Nand Keshar Singh who belonged to a village called Nasirna. This first information report was to the effect that the complainant, who was interested as a share-holder in the villages of Chhatai and Nasirna, was led to understand that the first applicant here had purported to dispose of (that is to say, sell) certain water, to which the former village was entitled, to some one for the purpose of irrigating another village. He, accordingly, informed certain other of his co-sharers and they, four in number, went to Chhatai to watch and guard their water rights. Whilst doing so, the complainant alleges that a large number of persons, 40 or 46 in number, armed with lathies and including the first applicant (whose name is mentioned first of all) came upon the scene. The first applicant spoke to the complainant and stated that the village of Naudara (which was the village to which the complainant had heard that the first applicant had purported to (sell rights of watering) should first be irrigated and that the village Chhatai should take a later turn at the irrigation of its fields. Upon the complainant and his friends remonstrating, the first applicant struck the complainant with his lathi on his left leg and incited others to assault the complainant. A number of other men then beat the complainant with their lathies and his leg was broken. The complainant also stated that he had subsequently learnt that his friends had fled and taken refuge in a certain house which the first applicant had then set on fire. The complainants right leg was found by the police to be fractured. It will be observed that the name of the second applicant here was not included in the first information. The first informant was taken on the same day to the dispensary at Nasirna where it was discovered that both his legs had sustained compound fractures: and, notwithstanding treatment he developed gangrene and died on the 21st October.

3. On the 20th October the police undoubtedly submitted a report to the Sub-Divisional Officer; unfortunately this report is not forthcoming and apparently has been abstracted from the Court papers; consequently it is not known exactly what was stated therein. But I think it must be presumed that it must have contained a report of the occurrence of what I may term the ordinary type: and, from a second supplementary report to the Sub-Divisional Officer, which was dated the 22nd October, it is quite clear that the name of the second applicant must have been referred to as an alleged participator in the riot. The reason for this latter inference may be thus explained. It will be ebserved that on the 20th October the offences which were contemplated were those of riot (under Section 147, I.P.C.): voluntarily causing grievous hurt (Section 325) and mischief by fire with the intent to destroy house (Section 436); that this was so is quite clear from the words of the report of the 22nd October which commences as follows:--"In connection with case No. 2 of 15th October 1923 Sections 147, 325, 436 and 304, I.P.C., of this police station...." It may here perhaps be noted in explanation of the addition of an offence punishable under the provisions of Section 301 of the I.P.C., that on the 22nd of October the police reported the death of the complainant to the Sub-Divisional Officer and that they had added to the case a charge u/s 304. It will be thus observed that the police had full authority to arrest without warrant. It is necessary to refer to the above matters in some detail in order to explain the contents of the report of the 22nd October. It is evident that the police had been unable to find either of the 2 applicants and it is clear from the wording of the report of the 22nd October that they had already applied to the Sub-Divisional Officer for a warrant of arrest against the first applicant. So far as the report of the 22nd October refers to the first applicant the material part reads thus:--"I beg to submit that I have already reported for issue of warrant of arrest against Raghupat Singh. I beg now that process under Sections 87 and 88, Cr.P.C., may also be issued against him." These Sections of the Criminal Procedure Code relate, as is of course well known, to the application of pressure by attachment of his property upon a person who is absconding and thus evading a warrant for arrest. With regard to the second applicant the material portion of the police report of the 22nd October reads thus:--"I beg now that...warrants of arrest may also be issued against the following accused persons (1) Daroga Singh...." Now in response to this application the Sub-Divisional Officer would appear on the 30 uh October to have ordered the issue of all the warrants requested and as returnable on the 26th of November. Whether all or any of these warrants were actually issued is a matter of dispute. The learned Counsel for the applicants has produced a certified copy of an extract from the process register of the Sub-Divisional Officers Court at Jehanabad and it would seem that in this register there does not appear to be included any record of the issue of these warrants. It does not however seem to me that it is really very material to the question which is now before this Court as to whether warrants were or were not actually issued; for the offences with which it was supposed that both the applicants were concerned were such as permitted their arrest without any warrants. The importance of the report of the 22nd October rests in my opinion upon the fact that it shows that at an early date the name of the second applicant had been mentioned as being one of those persons who were concerned in thFe affair; with regard to the first applicant his name was of course mentioned in the first information report. So far, however, as the second applicant was concerned the question of a warrant solved itself; for he surrendered and prayed for bail on the 1st of December. The Magistrates order-sheet commences on the 1st of December but I do not think it must be taken that it was on that day that he first took cognizance of the offence within the meaning of Section 190 of the Criminal Procedure Code. He had, it will be observed, already received a report on the 20th of October, from the police and, although this report is lost, it is quite clear that in that report the names of both the applicants must have been included as being persons accused in connection with what had taken place on the 15th of October. The Magistrates first order on his order-sheet is dated the 1st of December and reads:

Accused Daroga Singh and Deopat Singh surrender and pray for bail; they may be enlarged on bail of Rs. 500 each to appear when called." On the 11th of December the police submitted a charge-sheet. In the last column, which prescribes that the offence and Section of law applicable and the circumstances connected with the offence should be shortly and concisely stated, there is to be found a very long report which, so far as is material to the two applicants, was to the effect that the police, for reasons to which I will presently refer, did not think it advisable to send up, and did not in fact send up, for trial to the Sub-Divisional Officer either of the two applicants. The grounds, however, upon which the police came to the conclusion that they should not send up these two applicants for trial were not the same in each case. With regard to the first applicant, the Inspector of police at Jehanabad states that he was satisfied, from a personal verification by himself, that at the date of the occurrence the first applicant was in Calcutta; he is very positive about this; he says that the alibi of Raghupat was personally verified by him in Calcutta and Agakund, District Manbhum...and that Raghupats alibi appeared very convincing. He observes that the occurrence is alleged to have taken place on the 15th October at 1-30 P.M., but that it was proved from an entry in the Station General Diary of Mochipara Police Station, Calcutta which bears the signature of Raghupat Narayan Singh and by the Assistant Sub-Inspector of that police station, that Raghupat Narayan Singh lodged information of an occurrence at Mochipara Police Station on the 14th October at 10-15 P.M.; that his signature is down on the register and that there can be no room for suspicion about this entry. The Inspector states that respectable and disinterested witnesses proved that the first applicant was in Calcutta on 14th October 1923 and for some days before and after that date and that it was physically impossible for him to have come down from Calcutta and taketi part in the occurrence. With regard to the second applicant the Inspector of Police concludes that he should not be sent up for trial for, what I may term, general reasons, which evidently had made the Inspector of Police doubtful about the truth of the story told by the complainant. He says: "This evidence of alibi taken together which the fact that he (Raghupat) was falsely accused of setting fire to Bisambhs on house and the existence of an old ill-feeling between the parties as proved by many documents and that the three principal witnesses, i.e., Sukhdeo, Dewan and Ram Singh are very near relations of the complainant and the other witnesses are their ryots and creatures and the fact of the witnesses increasing the number of the accused as the investigation proceeded and the discrepant nature of the evidence raise very grave doubt about the complicity of Raghupat Singh and the other accused persons not named in the first information report but subsequently named by the witnesses during the investigation. So I do not send them up for trial with the others." In consequence of this, in the charge-sheet neither of the applicants was sent up for trial or charged. It will be observed that the Inspectors views are expressed very strongly. When the charge-sheet was received the Sub-Divisional Officers order was merely "15/12. Charge-sheet received; put up on the date fixed by the police." On the 17th of December the Sub-Divisional Officer happened to be out on duty and the matter was adjourned by the Officiating Sub-Divisional Officer until the following day when the order which is now complained of was passed by the Sub-Divisional Officer. This order reads:--"I think all the accused persons named in the first information report should be put on their trial. Issue non-bailable warrants of arrest against persons named in Col. 2. If these men are on police bail the bailors should be asked to produce them on 8th January 1924. Present accused to be on same bail and to appear on 8th January 1924, Witnesses for same date. Summon witnesses who are not present." It is here convenient to mention that on the 18th of December, after the charge-sheet had been received and its contents had come to the knowledge of those who were supporting the complaint, a petition, made by the uncle of the deceased first informant, was filed before the Sub-Divisional Officer complaining against the action of the police in excluding the first applicant from those who were sent up for trial to the Sub-Divisional Officer and charged on the charge-sheet. An application was then made on the 21st of December to the Sessions Judge asking him to set aside the order which had been made on the 18th of December by the Sub-Divisional Officer. Bat the Sessions Judge states on the 2nd January 1924: "Public Prosecutor heard. The Magistrate had the charge-sheet before him and was quite competent to put on trial persons mentioned as accused in that charge-sheet but not sent up by the police, if he thought proper to do so. The application is rejected." On the 4th of January an application was made to this Court in its Revisional Jurisdiction and Rule was issued on the day by this Court consisting of the present Bench on the 21st January; the matter then went before Mr. Justice Kulwant Sahay but was adjourned and on the 5th of February last Mr. Justice Ross, before whom the matter came, stated: "application raises a difficult and important question of law. Let this case be placed before a larger Bench." The real question which has to be considered here is as to what course a Magistrate can legally pursue if, when persons are accused by complainants of offences, the police as a result of their investigations come to the conclusion that certain of the persons accused have been falsely accused and so report to him. Of course if a person makes a complaint to the police and if the police report unfavourably upon the complaint there are ample provisions in the Criminal Procedure Code for further enquiry. It was suggested that in this case the petition of the uncle of the deceased on the 18th of December (complaining against the action of the police with regard to Raghupat) was the basis of the action of Sub-Divisional Officer in deciding to put the two applicants upon their trial; but, in the Magistrates explanation of the 9th January last, it is stated quite clearly by him that in passing his order on the 18th December 1923 he was in no way acting on the petition of any private party. What is stated is (not perhaps in a very lucid way) that his order, requiring the attendance of the two applicants for trial, is based on (a) the first information report dated the 15tb October last and (b) the request of the investigating Sub-Inspector contained in his report of the 20-10-1923. I think that this explanation which is given by the Sub-Divisional Officer is misleading and the learned Government Advocate (who has appeared for the Crown upon this application) agrees that what the Sub-Divisional Officer states as being what he regards as the, real foundation of what he did is expressed very unfortunately. The real point to my mind rests, as has been pointed out by the learned Counsel who appears for the applicants, upon the proper understanding as to at what moment the Sub-Divisional Officer took cognizance of the offence. So far as it has been placed before this Court, the first communication which was made to the Sub-Divisional Officer by the police was on the 2Cth of October 1923. It is true that we do not know in many particulars what was contained in this report, (because as I have said, it has disappeared) and, indeed, it is not known with certainty whether the Sub-Divisional Officer took any action with regard to it. We do know, however, to some extent what it contained and I think that it may be taken as practically certain that it was on that date that the Sub-Divisional Officer took cognizance of the matter within the meaning of Section 190, Sub-section 1, para, (b) of the Criminal Procedure Code. At any rate, it is to my mind quite clear, that on the report of the police of the 22nd of October, the Sub-Divisional Officer had taken cognizance of the matter and it is also quite clear that on the 30th he definitely issued orders for (a) process under Sections 87 and 88 of the Criminal Procedure Code against the first applicant (which he would not have done unless he had already issued a warrant of arrest against him) and (b) warrant of arrest against the second applicant. To my mind it is idle to suggest that at this date when he is passing orders in connection with the matter he had not taken cognizance of the offence.

4. There remains then the question for consideration as to whether, after the Magistrate had taken cognizance of the matter, he is bound by the views which may be expressed by the police when they submit their charge-sheet. At the date when the charge-sheet was submitted, the Sub-Divisional Officer had to my mind already taken cognizance of the offence; and, so far as the accused therein were concerned, he had already in his purview the two applicants as being definitely accused in connection with the offence. The Inspector, however, expressed a douot as to whether certain of the accused should be brought before him as committing Magistrate. In the case of the first applicant the Inspector his declared that as the result of his own investigation he has come to the conclusion that the first applicant has proved before him a satisfactory alibi. With regard to the second applicant the Inspector, in view of the general doubts and discrepancies which had obtruded themselves before him in the course of his investigation, has come to the conclusion that no one who was not mentioned in the first information ought to be sent up for trial before the committing Magistrate. The important question of principle therefore arises as to whether the Magistrate is bound to follow or should follow the opinion expressed by the police. I see no reason why he should. The opinion oppressed by a police officer as a result of his investigation may or may not be correct; it is not impossible that a police officer might be bribed to return a favourable opinion towards an individual accused in any case. If a person is charged by another person with an offence and on enquiry by the police the police consider that the whole case is false it is open to the complainant on petitioning against the police enquiry to place the matter within the scope of the operation of para (a) of Sub-section 1 of Section 190 of the Criminal Procedure Code. But where a Magistrate has already taken cognizance of an offence in which certain persons are accused I can see no authority for the suggestion that if when the charge-sheet is placed before the Magistrate the police officer as the prosecution medium omits the names of certain persons whose participation in the offence has up to that time been before the Magistrate he is compelled in any way to follow what is after all no more than advice tendered by the prosecuting authority. I am, however, far from being prepared to say that he should, as a rule, without giving any reason differ from :that advice and as a fact it is known that in practice the advice is generally followed. In this particular case I think that the explanation which was afforded by the Magistrate was not very prosecution and indeed mistaken but I have no doubt whatever that once having taken cognizance of the offence he is strictly entirely independent of any opinion which the police offer to him and it is within his powers to order that any persons who have been, since he has taken cognizance of the matter accused as being participants in the offence should be produced before him to undergo the preliminary enquiry before committal or for trial in cases which do not go to a higher tribunal for trial. To hold otherwise would be to place in the hands of the police (after a judicial tribunal had taken cognizance of the offence) powers which might be subject to the gravest abuse. In my view when a Magistrate has taken cognizance of an offence he is then in a judicial capacity (independent of police or any other authority) and he can order to be produced before him any person who was at the date when he took cognizance of the offence mentioned as an accused party. I am inclined, however, to think that purely as a matter of procedure the proper course in a case such as this would have been for a Magistrate simply to have called upon the police to bring forward a charge-sheet against those (including the two applicants) whom the Magistrate thought ought to be brought before him. And in ordering himself that these persons should be included in the charge-sheet which had been presented to him I think he was adopting an unusual procedure. In my view, therefore, this matter should be sent back to the Sub-Divisional Officer so that he should, if after consideration he still thinks fit so to do, direct the police to put forward a supplementary charge-sheet embodying the names of the applicants and such other persons as he thinks fit should be brought before him.

Adami, J.

5. I agree.