ORDER

Bennet, J. - This is a reference in revision made by the learned Additional Sessions Judge of Benares, recommending that the conviction and sentence in a summary trial of Sunder Teli before a Magistrate should be quashed and that another Magistrate should be ordered to re-try the case after framing proper charges. Probably the Additional Sessions Judge did not mean that the charges should be framed before the case was tried but that charges should be framed at the normal period after hearing the prosecution evidence. The facts in this case are that Mahomad Khan made a report in the thana to the effect that the following property had been stolen from his shop:

     Six bags of salt valued at  -  43  0  0     One bag of chokar    -          2 12  6     Money amounting to   -          5  8  0

2. The total property alleged to have been taken is therefore worth Rs. 51-4-6. If this case had been tried on a complaint made by Mahomad Khan in Court, it is clear that it could not have been tried summarily, and three rulings produced by the learned Counsel for Sunder Teli are to this effect. These rulings are Fanindra Nath Chatterji v. Emperor [1909] 36 Cal 67, Chandra Mohan Das v. Emperor [1921] 77 IC 992, Kailas Chandra Pal v. Joynuddi [1901] 5 CWN 252 All these three cases deal with proceedings initiated in Court on complaint, that is u/s 190 (1) (a). But in. the present case the Magistrate took cognizance u/s 190 (1) (b) upon a report in writing of the facts made by a police officer. No ruling has been produced to show that in the case of a prosecution by the police the question whether the trial is to be summary or otherwise depends on the first report made in the police station. Now in the charge sent to the Court by the police it was alleged that the accused Sunder Teli had stolen from Mahomad Khan two bags of salt. There was no prosecution by the police of Sunder Teli in regard to the remaining 4 bags of sal or the bag of chokar or Rs. 5-8-0 cash. The reason why the police only prosecuted Sunder Toli for stealing two bags of salt is that on a search of the house of Sunder Teli only 2 bags of salt were found. Three of the remaining bags were found in the possession of a witness, who was the owner of the bags of salt. There was no evidence as to what had happened to the bag of chokar, and there was no evidence to confirm the statement that Rs. 5 8-0 in cash had been taken. Moreover it appears from the evidence that the accused Sunder Teli was not the only person who was concerned in the taking of property from the shop of Mahonaad Khan. Other persona are alleged to have taken property at the same time, but Sunder Teli was the only person prosecuted, and the evidence against him put forward by the police was only as regards the "finding of the two bags of salt in his house. It is true that the Magistrate in his finding held Sander Teli liable for the theft of the six bags of salt. Apparently he did so because of the statement of the owner of the bags that the accused had taken away the three bags of salt which he gave back to the owner Lallan. No authority has been shown to me for the proposition that because Mahomad Khan, the owner of the shop, when called as a witness stated what he had stated in his first report, that is that property to the value of Rs. 51-4-6 was taken by the accused and his men, that therefore the jurisdiction of the Magistrate to try this case summarily would not exist. It was argued by the learned advocate for Sunder Teli that the statement of Mahomad Khan in evidence should be treated in a different way from the statements of other witnesses for the prosecution. But Mahomad Khan was not conducting the prosecution. He was merely a witness called by the police, who were prosecuting Sunder Teli. I do not see why the statement of Mahomad Khan should have the capacity of altering the jurisdiction of the Court in a way that the statement of any other witness in Court would not have. I consider that the jurisdi