JUDGMENT

1. This is described as a reference by the Sessions Judge of Shahjahanpur. It appears that the police secured the institution of proceedings u/s 110, Criminal P.C. against two persons Roshan and Ramlal. The police desired that these two men should be bound down for a period of three years each. The case was heard at the usual great length which is one of the unfortunate characteristics of this type of case, and the Magistrate eventually discharged Ramlal and bound down Roshan for a period of only one year. This did not satisfy the police, and the Prosecuting Inspector approached the District Magistrate with a number of written criticizms of the order of the trial Magistrate and concluded his notes as follows

It is therefore requested that the High Court may kindly be moved to enhance the term of one year's notice of Roshan to three years and to order the retrial of Ramlal u/s 437, Criminal P.C.

2. The type-written copy, which is all that can be traced in this Court, is undated and shows that the signature to the document is illegible.

3. Whether this document was ever perused by the District Magistrate or not we are unable to say. The next proceeding that we have before us is a letter purporting to be from the District Magistrate to the Registrar of this Court, through the Sessions Judge of Shahjahanpur, which purports to be signed on behalf of the District Magistrate by a Deputy Magistrate, apparently Pt. Anirudh Kishan Sharma, and to it was attached the note of the Prosecuting Inspector.

4. This letter together with the note reached the Sessions Judge, Mr. Ardagh. Whether there was any hearing of the case before Mr. Ardagh we cannot say; but he passed an order on 1st November 1928, which begins:

In this case the District Magistrate recommends that the period for which security is demanded from Roshan be increased to three years and that security be demanded from Ramlal for one year. I have been through the file.

5. This suggests that the learned Judge examined the file for himself but did not have it argued before him. His order, which is a very brief one, concludes:

As regards the case of Roshan from whom security was demanded for a year there appears to be no necessity to approach the Hon'ble High Court through the Local Government. No appeal has been presented on behalf of Roshan and the period of appeal has expired,

6. In an earlier portion of the judgment he had said:

I consider that the prosecution evidence against both the accused is unrebutted and that security should have been demanded from both.

and as to Roshan

security should have been demanded for a longer period.

7. In another place on the back of the letter from the District Magistrate to the Registrar of this Court, which has been signed on behalf of the District Magistrate by Mr. Sharma, Deputy Magistrate, the learned Judge endorsed:

Forwarded to the Registrar, High Court of Judicature at Allahabad, for orders of the Hon'ble Court.

8. In fact this last action is all that was called for on the part of the Sessions Judge in the case of a reference by the District Magistrate. In this manner the case has come before us. It would seem that neither the District Magistrate nor the Deputy Magistrate nor the Sessions Judge has appreciated the proper course to adopt. We will deal with these documents seriatim in order to facilitate an appreciation of what we have to say.

9. First, as to the order of Mr. Abdul Jalil, the Sub-Divisional Magistrate of Pawaja dated 4th September 1928, the order which we are asked to consider and to hold to have been mistaken, we would commence by expressing our high appreciation of the obvious care and patience which he gave to a mass of confused evidence, and anything that we may say in reference to mistakes made by him must not be understood to detract from that appreciation. The notice that was issued to the two men was a notice to them jointly, and this we consider was undesirable. Each man is entitled to a separate notice and not to have th