1. This is a reference under Section 438, Criminal P. C, made by the Additional Sessions Judge of Noakhali recommending that the order passed by the Sub Divisional Magistrate of Noakhali (Sadar), dated 8th October 1928 be set aside. The facts which have given rise to this reference are briefly these. On 1st September 1928 a report was submitted by the Sub-Inspector of Police whereby he asked the Sub-Divisional Magistrate to draw up proceedings under Section 107, Criminal P.C., against Abdul Mannaf and others. This report of the Sub-Inspector came to the Inspector of Police and the Inspector suggested that both parties might be warned. Thereupon on 8th September 1928 the Magistrate issued warning notice on both parties. Nothing further was done in the matter till the 8th October 1928 when the Magistrate passed the following order:
Read further police report. Draw up proceedings against the 2nd party under Section 107, Criminal P.C.
2. Whereupon proceedings under that section were drawn up against the petitioners.
3. The learned Sessions Judge has given two grounds for his recommending that this order dated 8th October 1928 be set aside. The first one is that although the order of the Magistrate dated 8th October purports to have been passed on a second report, there is nothing in the record of the case to show that such a report ever existed. The learned Magistrate in his explanation does not say anything very definitely about the existence of such a report. That the proceeding under Section 107 were drawn up not on a second report but on the basis of the original report of police, dated 1st September 1923 would appear pretty clear from the procee3ing itself. In the proceeding that was drawn up against the petitioners there is a clear statement that the basis of the proceeding was the report submitted by the police on 1st September 1928. It must, therefore, be accepted that the order which has been recommended to be set aside was an order passed on the report of the police, dated 1st September. Now the question is whether the learned Magistrate could pass such an order on the basis of that report of 1st September on which ho had passed the order for issuing warning notices to both parties This would depend on whether the order passed by the Magistrate on 8th September should or should .not be taken to be an order finally disposing of the matter I am of opinion that this order of 8th September issuing warning notices to the parties ought not to be taken as an order disposing of the report of the police finally one way or the other. It cannot be said that the learned Magistrate by issuing the warning order on 8th September became functus officio because there is no provision to be found in the Criminal Procedure Code whereby such an order can be passed by him.
4. In view of the aforesaid observation we are unable to accept the reference.
5. The reference is, accordingly, rejected.
6. I agree.