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 (Judicial), Tellicherry referred these cases under section 438, Criminal Procedure Code, to this Court to pass an order in accordance with law setting aside the order of the Sub-Magistrate, Cannanore, passed On 30th November, 1971 in C.C. No. 984 of 1971 and C.C. No. 985 of 1971.

3. Or the strength of a First Information statement of one Assan and Kundan two separate crimes were registered at the police station, Payangadi on 25th May, 1970. There were 7 accused persons in the first crime and 5 in the other is 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 17

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