1. This is a Reference made by the learned Sessions Judge of Rangpur under the provisions of Section 438, Criminal Procedure Code. As is pointed out by the learned Judge, the complaint discloses or alleges the commission of an offence, in the case of oat least on of the accused, punishable u/s 144, Indian Penal Code. There is nothing it is further pointed out by the learned Sessions Judge, to indicate that in. so far as the number of persons was concerned the case was in any way exaggerated. It follows that the case now before us was not triable summarily.
2. We must, therefore, set aside the conviction and sentence against which this reference has been made and direct that the two accused before us be now retried under the regular procedure. The re-trial will take place in the Court of a Magistrate other than the Magistrate in whose Court the conviction now set aside was had such Magistrate to be nominated by the District Magistrate.
3. The fine, if paid, will now be refunded.
