MOIDU, J.

The question that arises for determination in these criminal references is whether the trial Magistrate has the right to dispense with the presence of a person and remove him from party array if it is conclusively established that he is not an accused person charged with any offence in the case under enquiry or trial.

2. These references came before us on account of an order of a learned single judge of this court under Section 3 of the Kerala High Court Act, 1958. The District Magistrate (Judl). Tellicherry referred these cases under Section 438 Criminal P.C. to this Court to pass an order in accordance with law setting aside the order of the Sub Magistrate, Cannanore passed on 30-11-1971 in C.C. 984/1971 and C.C. 985/1971.

3. On the strength of a First Information statement of one Assanand Kundan two separate crimes were registered at the police station. Pavangadi on 25-5-1970. There were 7 accused persons in the first crime and 5 in the other in each of which the offences alleged to have been committed were under Sections 143, 147 and 323 read with Section 149 of the Penal Code. After investigation, a report under Section 170 Criminal P.C. and final report