Kanhaiya Singh, J.

1. This is a reference by the Sessions Judge, Muzaffarpur, under Sec. 438 of the Code of Criminal Procedure recommending the setting aside of the order of the Magistrate dated 2nd July, 1958, by which he recalled his previous order of discharge dated 11th June, 1958, and. summoned the accused persons afresh.

2. The facts are these : On 5th November, 1957, Prabhu Dayal Missir, the complainant, instituted a case before the Town police at Muzaffarpur for Prosecution of Raghubans Prasad, Sahdeo Singh, Baleshwar Prasad and Raghunath Pandey for the offence of theft and cheating under Ss. 379 and 420 of the Penal Code. Eventually, the police submitted charge-sheet against them, and the Sub-divisional Officer, Muzaffarpur, took cognizance of the case on 4th March, 1958, and transferred it to Mr. B. N. Missir, Judicial Magistrate, 1st class, for disposal.

After some adjournments, the case was taken by Mr. Missir On llth June, 1958. Upon a consideration of the documents before him and after hearing the parties, the Magistrate formed an opinion that the facts did not disclose commission of offences under Ss. 379 and 420. Accordingly, he discharged the accused person