JUDGMENT 1. This is a rule to show cause why the conviction of the Petitioner under sec. 434, I.P.C., should not be set aside. He was charged with having destroyed and carried off the materials of certain boundary pillars erected by a survey Amin under the authority of the Collector. He was then convicted by the Deputy Magistrate under secs. 379 and 434, I.P.C., and sentenced to undergo 1 month's rigorous imprisonment under the former, and to pay a fine of Rs. 50 under the latter section. On appeal the conviction and sentence under sec. 379, I.P.C., were set aside by Mr. Deb, District Magistrate and the conviction and sentence under sec. 434 were affirmed. 2. In support of this rule it has been argued (1) that the acts of the accused did not amount to mischief (2) that Mr. Deb as District Magistrate was incompetent to hear the appeal. 3. We do not think the first of the pleas can prevail. The Petitioner seems to have had good reason to know and to have known very well that the boundary pillars had been put up by a public servant under the authority of the Collector. His act in destroying the pillars and scattering and removing the materials in our opinion does amount to mischief. We consider, however, that the second plea is a good one. Mr. Deb as Joint Magistrate appears to have taken cognizance of the case under sec. 190 (1) (c), for the Deputy Magistrate says that the report made by the Amin to the then Collector, Mr. Foley, "was not the complaint made to the District Magistrate in the sense in which it is defined in the Criminal Procedure Code, but it was simply an information regarding the occurrence of an offence, which had taken place." Mr. Foley's order on this report was "see under what sections Bansi Lal, Dasrathi Lal and their servants can be prosecuted and prosecute them accordingly. Put up before Mr. Deb for the issue of necessary orders" This is not the order which would be passed on a written complaint under sec. 202 made to a Magistrate. Mr. Deb's order was "summon Bansi Lal under sec. 434 for 285." Hence, it would seem to us that he took cognizance of the case under sec. 190 (1) (c). It is now argued by the District Magistrate, Mr. 202 made to a Magistrate. Mr. Deb's order was "summon Bansi Lal under sec. 434 for 285." Hence, it would seem to us that he took cognizance of the case under sec. 190 (1) (c). It is now argued by the District Magistrate, Mr. Foley in his letter showing cause that the Amin filed a written complaint to him. This is contrary to the view taken by the Deputy Magistrate in his judgment and it would not seem to us that the written report of the Amin was a complaint, nor was it treated by Mr. Foley as a complaint but rather dealt by him as Collector as the Deputy Magistrate says it was, and hence Mr. Deb must be regarded as taking cognizance of the case under sec. 190 (1) (c). So before hearing the appeal when he became District Magistrate he should have followed the procedure laid down by sec. 191, because an appeal is part of the trial of an offence. Mr. Deb should have accordingly given the accused his choice of having the appeal heard by another Magistrate but did not do so. We therefore set aside the Appellate Court's order dated the 21st September 1907, and direct that the accused's appeal be heard and disposed of by any Magistrate other than Mr. Deb competent to hear it, whom the District Magistrate may select for the purpose, or by the District Magistrate himself Mr. Foley, if there is no other Magistrate at the station of Gya competent to hear the appeal