ORDER Bennet, J.
1. 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 I.C. 992, Kailas Chandra Pal v. Joynuddi [1901] 5 C.W.N. 252. All these three cases deal with proceedings initiated in Court on complaint, that is under Section 190 (1) (a). But in. the present case the Magistrate took cognizance under Section 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 jurisdiction of the Court to try summarily a case 'prosecuted by the police is derived from the nature of the charge preferred by the police. It is possible that if the Magistrate had come to the finding that property worth more than Rs. 50 had been stolen by this accused Sunder Teli, than the jurisdiction of the Magistrate to try the case summarily would have ceased, and it would have become the duty of the Magistrate to begin the trial again as an ordinary warrant case. But where the police prosecuted for theft of property not exceeding Rs. 50 and where the Magistrate convicted the accused of the theft of property not exceeding Rs. 50 then I consider that there is no defect in the jurisdiction of the Magistrate to try the case summarily. Accordingly I consider that the summary trial was not invalid on this ground.
3. The other ground advanced by the learned Additional Sessions Judge is that the evidence of the complainant and his witnesses disclosed the offence of dacoity, because he says there was theft, and extortion committed. 'Extortion" is defined in Section 383, I. P.C., as putting a person in fear of any injury to that person, or to any other, and thereby dishonestly inducing the person so put in fear to deliver to any person any property. There is nothing in the judgment of the Magistrate which indicates that there was in this case any delivery of property by Mahomad Khan and to the accused. Accordingly therefore there could be no extortion. The learned Counsel for Sunder Teli however suggests that the learned Additional Sessions Judge is mistaken in referring to the extortion, and that what he should have referred to was to para. 1 in the definition of "robbery" in Section 390, I. P.C. Theft is "robbery" under that paragraph if the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Now there is no evidence at all that any of these things was caused to Mahomad Khan. The evidence is that the accused and six or eight men came and demanded payment of a sum of Rs. 8 alleged to be due from the brother of Mahomad Khan and threatened that if the money was not paid the house would be plundered. The accused and his compenions then entered the complainant's shop and threw out the contents on the road and carried the contents away. There is nothing stated at all that Mahomad Khan was put in fear of instant death or instant hurt or instant wrongful sestraint. The owner of the six sacks of salt, P. W., Lallan, was present and asked the accused not to take his sacks.
4. It is quite possible that Mahomad Khan did not take any action in the matter, because he saw that the owner of the salt was present. It would have to be proved that Mahomad Khan was put in fear of instant death or instant hurt or instant wrongful restraint before it could be held that the offence amounted to robbery. Accordingly I consider that even a technical offence of dacoity is not made out, and that the learned Sessions Judge was wrong in considering that there was such a charge shown by the evidence. Moreover, as I have stated already, I do not consider that where the police prosecuted an accused person for an offence triable summarily and where the Magistrate convicts that accused person of an offence triable summarily, any exaggeration as to the nature of the offence should have any effect on the jurisdiction.
5. For these reasons I refuse this application in revision and uphold the conviction and sentence by the Magistrate.