A.N.RAY, J.

(1) THIS is an appeal from the judgment, dated 18/11/1967 of the High court at Patna.

(2) THE question for consideration is whether a Sub-Divisional Magistrate could after submission of a final report by the police direct the police on what is described as a protest petition having been filed by the opposite party to submit a charge-sheet.

(3) THE facts in short are that on account of an occurrence at the platform of Muzaffarpur Railway Station on 24/03/1964 two cases were instituted before the Railway Police.

(4) ONE of these was instituted by the appellant against the respondent and the other was instituted by the respondent against the appellant.

(5) THE appellant in the case instituted by him alleged that the respondent wanted to entrain two of his men in an unauthorised way in one of the compartments and the appellant objected to the same, whereupon the respondent pulled the appellant on the platform and assaulted him. A chargesheet was submitted against the respondent in that case.

(6) THE present appeal relates to the case instituted by the respondent against the appellant on these allegations. The appellant at the material time was a Travelling Ticket Examiner while the respondent was a police havildar. The respondent alleged that while he was on duty at the railway platform on the relevant date, he found a few smugglers were travelling in a particular compartment. The respondent wanted to enter the compartment. The appellant pushed him back. The appellant and three other Ticket Examiners assaulted the respondent.

(7) THE Deputy Superintendent of Railway Police who carried on the investigation submitted a report to the Deputy Inspector General (C. I. D.), Crime Branch and Railways under whom the investigation was carried on, to the effect that there was insufficient evidence against the appellant and further that the respondents case against the appellant was a palpably false story about the smugglers and the case was therefore to be returned as "F. R. T. insufficient evidence".

(8) ON 2/04/1964 the respondent filed a "protest petition" against the final report of the police. On 1/09/1964 the Sub-Divisional Magistrate called for the case diary, supervision and progress report of the police case as prayed for by the respondent. On 14/11/1964 the Sub-Divisional Magistrate passed an order directing the police to submit the charge-sheet under Section 353/379 of the Indian Penal Code.

(9) THE appellant went up before the Sessions Judge of Muzaffarpur in rivision against the order of the Sub-Divisional Magistrate and asked for a reference to the High court. The appellants application was rejected by the Sessions Judge. Thereafter, the appellant filed an application in revision before the High court at Patna. The appellant contended that the Sub-Divisional Magistrate acted without jurisdiction in asking the police to submit the charge-sheet and therefore the order dated 14/11/1964 passed by the Sub-Divisional Magistrate should be quashed.

(10) THE High court at Patna held that calling for a charge-sheet by a Magistrate means taking cognizance of the case and then summoning the accused through the police, and, therefore, it did not amount to interference with the police investigation. The High court at Patna referred to two divergent views expressed by the High Courts. The views of the High Courts at Calcutta and Madras are that the Magistrate has no such power whereas the views of the High courts at Bombay and Patna are to the contrary. The High court at Patna did not see any reason to depart from the view of that court.

(11) IT has been emphasised in several decisions that it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of enquiry.

(12) THIS court in the case of H. N. Rishbud v. State of