Imam, J.

1. This is an application under Article 227 of the Constitution. It appears that the petitioners were convicted by a Gram Cutcherry constituted under the Bihar Panchayat Raj Act, 1947 (Bihar Act 7 of 1948). The conviction purported to be under the Cattle Trespass Act. The Sub-divisional Magistrate, however, purporting to act under Section 73 of the Act set aside the order of conviction and remanded to the Gram Cutcherry the case for retrial.

2. It was contended on behalf of the petitioners that if the Subdivisional Magistrate purported to set aside the order of the Gram Cutcherry convicting the petitioners under Section 73 (1) of the Act, then he had no jurisdiction to send the case back to the Gram Cutcherry for retrial, because under Sub-section (2) where a Subdivisional Magistrate makes an order under Sub-section (1) the complainant may institute a case afresh in the Court of the Subdivisional Magistrate. It is best at this stage to quote Sub-sections (1) and (2) of Section 73 of the Act.

"73 (1) If there has been a miscarriage of justice or if there is an apprehension of miscarriage of justice, in any case or suit, the Sub-divisional Magistrate in respect of an