This reference has been made by the learned Sessions Judge Mahasu recommending that the order made by the learned Magistrate Second Class Kotkhai discharging the respondents of an offence under S. 448 read with S. 109 of I. P. C. be vacated.

2. A complaint had been filed against respondents by Shankar Dass for an offence under S. 448 read with S. 109 of I. P. C. in the Court of Magistrate Second Class Kotkhai. On 5-4-1962 the complainant was absent and on that ground the learned Magistrate discharged the respondents in exercise of the powers conferred by S. 259 of Cr. P. C. An application in revision against that order was filed before the learned Sessions Judge on the grounds that the order of discharge was illegal and the complainant was present outside the Court room throughout the day but the case was not called on for hearing. While the Sessions Judge did not accept the complainant's version as to his being present he was of the opinion that as the offence with which the respondents were chargeed was a cognizable one the provisions of S. 259 of Cr. P. C. were not attracted and accordingly he submitted the reference under consideration. Section 259 of Cr. P. C. reads as b