B.S.SINHA, J.

1. This reference under S. 438 of the Cr. P. C., 1898 (hereinafter to be referred to as the Code) has been made by Shri Sharda Prasad, Sessions Judge, Bhagalpur. By an order, dated 30-1-1973 S. N. P. Singh, J. as he then was, directed it to be heard by a Division Bench, as he was of the view that there was a, conflict between the decision in S. N. Dubey V/s. Devi Kant Jha, 1971 0 CrLJ 77 and the unreported decision, D/-26-1-1972, passed in Shital Prasad Singh V/s. Janeshwar Singh, Criminal Misc. No. 897 of 1970 (Pat) by Mr. Justice J. Narain. That is how the case is before us.

2. On 8th Dec., 1969, the opposite party, Budhan Mahto, filed a complaint petition before the Sub-Divisional Magistrate of Banka alleging offences having been committed under Ss. 144 and 379 of the I.P.C. Shri Surya Narain Sinha, 2nd Officer of Banka examined the complainant on solemn affirmation on the same day and thereafter passed an order for enquiry under S. 202 of. the Code by Shri S. N. Gupta, Magistrate, Banka, who submitted his report on the 30th May, 1970, stating that no prima facie case had been made out. On 13th June, 1970, the complainant filed a protest petition and the ma