P. S. Sa hay. J.

These two applications arise out of two different orders passed in G. R. Case No. 1760 of 1973. Criminal Miscellaneous No. 775 of 1976 has been filed by Bharat Pandey against the State of Bihar and six others against the order dated 12.11.1975, by which the Magistrate recalled his previous order dated 19.7. 1975.

Taking cognizance under section 182 and 211/34 of the Indian Penal Code. Criminal Miscellaneous No. 603 of 1976 has been filed on behalf of four persons against the order dated 2. 2. 1976 taking cognizance against the petitioners and others (14 persons in all) under sections 144, 436, 435 and 302 of the Indian Penal Code. It was transferred to the Court of Sri H. C. Singh, Judicial Magistrate, 1st Class, for commitment proceedings. In order to appreciate the points some facts will i, e. necessary.

2. On 31.12.1973 the Officer-in-Charge of Mairwa Police Station learnt that certain huts belonging to the Harijans bad been burnt. He rushed to the place and one Ramkishun Harijan reported that Kailash Pandey, Dayanand Pandey. Juttan Pandey and Bishwanath coudhary came near his house and Kailash Pandey ordered and Dayanand prepared a lukari and set fire to his hut, in which his father, Teju Harijan was sleeping. Because of old age he could not come out of the hut and he was burnt alive. He raised halla and a number of persons arrived On the said statement a first information report was lodged against ten persons who where named in the said report. Investigation was taken up by the police and inquest was prepared of the dead body of Teju Harijan. A post mortem examination was also held by Dr. Dharmdeo Choudhary, Assistant Surgeon of Siwan Hospital, who opined that the death was due to severe burn injuries, producing shock. During the pendency of this application, an application was filed before the Chief Judicial Magistrate alleging that the investigating officer had not been conducting the investigation properly. It seems that the investigation was taken from the police officer concerned and entrusted to the C.I.D. which further investigated into the matter. On 20.6.1975 a report was submitted by the police that the allegations made in the first information report were all false, and, therefore, the informant Ramkishun Harijan and the witnesses should be put on trial under sections 182 and 211/34 of the Indian Penal Code. Another report was submitted that the ajllegations made by the informant were not correct and, therefore, final report was submitted in this case as false. It seems that the Chief Judicial Magistrate considered the report for the prosecution of the informant and others, and by his order dated 19. 7. 1975 he took cognizance under sections 182 and 211/34 of the Indian Penal Code against the informant and others and transferred the case to the Court of Sri Y. P. Bhagat, Judicial Magistrate, 1st Class, for disposal. Sri Bhagat, on receipt of the records, found that he, being a Magistrate of the 2nd class, was not empowered to try the case, and, therefore, he sent back the case to the Chief Judicial Magistrate. A petition was also filed by the informant before the Chief Judicial Magistrate that the records of the above case in which cognizance had been taken under sections 182 and 211/34 of the Indian Penal Code be placed with the records of the main case, because the learned Magistrate had not considered the Police Diary and the final report submitted by the police. The learned Magistrate by his order dated 12. 11.1975 recalled the previous order dated 19.7.1975, which, as I have stated, has given rise to Criminal Miscellaneous no.775 of 1976 The entire Case Diary and the final report submitted by the police were placed before the learned Chief Judicial Magistrate who, on a consideration of all the materials, in spite of the final report submitted by the police, took cognizance, on 2. 2. 76 against the petitioners and others, as stated above, and this gives rise to Criminal Miscellaneous n