Kanhaiya Singh, J.

1. This is a reference under Sec. 438. Criminal Procedure Code, recommending that the order of the Sub-divisional Magistrate Muzaffarpur, dated 31-8-1959 summoning the accused persons upon a complaint of offences under Sections 323, 147 and 448 of the Penal Code be set aside.

2. On 20-11-1958 one Nirpat Singh filed a petition of complaint before the Subdivisional Magistrate, Muzaffarpur The allegations in the petition of complaint are as follows. The complaint Nripat Singh had married a Nepali girl, on account of which the accused persons, six in number, who are his gotias were enraged and therefore, ostracised him. When his mother died in the Baisakh of the same year, the complainant invited them to the usual feast, but they declined to participate in it. Instead, they started stopping egress and ingress of the complainant

The latter convened a Panchaiti, but the accused remained adamant and paid no heed to the Punches, rather, before the very punches they abused him and were ready to assault him. The Punches, however, intervened and took them away. This irritated them further. On 18-11-1938, the accused started digging a ditch to close his passage inten