S.S.Sandhawalia, J.

1. The passage of time has rendered somewhat academic the otherwise significant question formulated in the terms following by the referring Division Bench:

Whether the word application in Clause (a) of Sub-section (2) of Sec. 484 of the Code of Criminal Procedure 1973 includes a petition of complaint?

2. What seems to be equally on the anvil is the correctness of the Division Bench view in Mahanth Barinar Das and Ors. V/s. The State of Bihar, 1975 0 BBCJ 364 which indeed has necessitated this reference to the larger Bench.

3. Somewhat apologetically it has to be mentioned that this pending proceeding arises from an incident of nearly 16 years ago. Way back in July 1968 one Asharfi Lal of village Mohammadpur lodged information about the body of Arbind Kumar, a boy of 9 years, which was said to have been found in a maize field in the vicinity of police station Mohiuddinagar. The house of the deceased, who was admittedly the son of the complainant Dharnidhar Sahu, was in the close vicinity of the said police station. Asharfi Lal Sah, above-mentioned, had cautiously stated that the deceased boy was missing from his house from 7 P M. on the preceding day, having gone to the fields in the evening to ease himself and there were many cases reported about man-eater animals having devoured children in similar situations. It would appear that the body of the deceased without any post-mortem was made over to the aforesaid Asharfi Lal Sah, who was in no way related to the deceased, behind the back of the parents, who had gone to Patna, and he consigned the body in the water. An undetected case No. 4 of 1948 dated 30th of July, 1968, was consequently recorded wherein it was accepted that the same was a case of jackal bite.

4. However, when the parents of the deceased returned from Patna, Dharnidhar Sahu, the father of the deceased, lodged a complaint petition on the 19th of August, 1968, before the Sub-divisional Magistrate, Samasaipur, who sent it to the police station for institution of a case. The police, however did not even submit any first information report. It would appear that so far as the body of the deceased was concerned, only a piece of bone was later recovered from the water which was sent for post-mortem examination and was found to have mark of injury. Ultimately the complaint which could not be proved any further. Finding the police wholly indifferent in taking any interest in the matter, the mother of the victim then filed petition before the Superintendent of Police, Lahariasarai, in which the death of the boy was alleged to beat the hands of accused persons named therein because one of the accused Chaturi Sahu had thought this boy responsible for the death by drowning of his grandson a year before. The result of this petition, however, was virtually foregone due to the cold attitude of the police and ultimately on the 6th of October, 1970, a final report was submitted that the case was true but without sufficient evidence. Thereafter the protest petition already filed by the complainant was later converted into a complaint petition in which after examining the complainant on solemn affirmation the matter remained inordinately delayed for a considerable time till 1974 for want of the case diary. By this time the new Code of Criminal Procedure had come to be in force, The learned Magistrate had then directed the case to be sent for investigation under Sec.202 of the Code of Criminal Procedure 1898 to the Executive Magistrate, Sarnastipur Municipality, who after inquiry also reported the case to be false.

5. However, when the matter was placed before the learned Chit f Judicial Magistrate, he in a detailed and considered order dated 12th May, 19 76, ultimately concluded as under:

Hence from the evidence of the witnesses examiaed by the E.O. and the circumstances noted above I find a prima facie case being made out for the offence of murder against the accused persons. Cognizance is, therefore, t