JUDGMENT 1. This is a rule, calling upon the District Magistrate of Gya to show cause why the conviction of and sentence passed upon the applicant should not be set aside, upon the ground that the charge is contrary to law; why the case should not be retried, and why, in the retrial, the statement made by the applicant to the Sub-divisional Officer of Jahanabad in the enquiry under sec. 202, C. Cr. P., should not be exlcuded. The facts of the case are these The applicant. Sat Narain Tewari, was tried for certain offences, under sec. 409, I. P. C. He was the Sarpanch, of the village, that is, the collecting member of the punchayet and he is alleged in that capacity to have collected three sums of money in 1904, namely, Re. 1-11 annas on the 5th August, Rs. 5 on the same date, and Re. 1-3 annas on the 20th May. These sums were collected from throe persons, Rameswar Misra, Mohesh Lal and Harkhu Singh as Chowkidari tax. Subsequently the applicant was removed from his post of collecting member and was succeeded by Raghunandan Pershad. Raghunandan Pershad appeared before the Magistrate and gave information that the collections of his predecessor, Sat Narain Tewari, were short; and there is no doubt that this was the case That being so, Sat Narain was upon his trial for embezzlement of these three sums; and one charge was drawn up, in which all the 3 sums and the persons from whom he collected them were specified. But he was not charged with three offences under sec. 409, I. P. C, but with one offence under sec. 409; and he was convicted of one offence and sentenced to one term of imprisonment. 2. Now, the first ground upon which the rule was granted is that the charge was illegal, and that the applicant could not be tried on such a eharge. 3. It is unnecessary to discuss this point at length, because we think the charge was in accordance with secs. 234 and 222, subsection (2), C. Cr. P., and this has been held in the cases of Emperor v. Gulzari Lal I. L. R. 24 All. 254 (1902), Samiruddin Sarkar v. Nibaran Chandra Ghose 8 C. W. N.807:s.c. I. L. R. 31 Cal. 928 (1904) and The Emperor v Ishliaf Ahmed I. L. R. 27 All. 69 (1904). 234 and 222, subsection (2), C. Cr. P., and this has been held in the cases of Emperor v. Gulzari Lal I. L. R. 24 All. 254 (1902), Samiruddin Sarkar v. Nibaran Chandra Ghose 8 C. W. N.807:s.c. I. L. R. 31 Cal. 928 (1904) and The Emperor v Ishliaf Ahmed I. L. R. 27 All. 69 (1904). That being so, we do not think that the charge in this case comes within the purview of the ruling of the Privy Council in the case of Subramania Iyer v. The King-Emperor 5 C. W. N. 866; S. C. I. L. R. 26 Mad. 61 (1901). Accordingly, the first ground on which the rule was granted fails. 4. But there is another ground, namely, that the admission, or confession, of the applicant, made before the Deputy Magistrate of Jahanabad on the 19th December 1904, is inadmissible in evidence. It has been recorded under sec. 164, C. Cr. P.; and it is contended that the Deputy Magistrate had no authority to record the confession under sec. 164, because the case of the applicant was not then under enquiry before the Police. Sec. 164 occurs in the chapter of the Criminal Procedure Code relating to information to the Police and their powers of investigating. Furthermore, it is contended that it is not a statement recorded under sec. 364, C. Cr. P. That, of course, is obvious, because the applicant was not then being tried for an offence. It is urged that it was a statement made in the course of the enquiry which the Deputy Magistrate was carrying on under sec, 202, C. Cr. P. This would seem to be correct, and that being so, the Criminal Procedure Code does not contemplate a statement on the examination of the Petitioner being recorded in such proceeding. We therefore think that the statement of the applicant in this case which has been admitted as proving itself, is not admissible as such in evidence, and we are unable to say whether the evidence, other than this so-called confession, is sufficient for conviction. 5. We accordingly set aside the conviction and sentence, and direct that the applicant be retried. 6. 5. We accordingly set aside the conviction and sentence, and direct that the applicant be retried. 6. Whether, in the course of the new trial, the admission made by Sat Narain Tewari, when it is obvious he was not in the position of an accused person, can be proved in any way, is a question upon which we do not express any opinion. But we think that when the new trial takes place, the statement which the applicant made to the Deputy Magistrate, and which purports to be recorded under sec. 164, C. Cr. P., cannot be admitted in evidence as proving itself. The rule is made absolute on this ground. The case will go back for retrial. But we consider that it should be retried by some Magistrate other than the Magistrate by whom it has already been tried.