1. In our opinion Mr. Justice Boys has taken the right view in this matter, and, so far as this High Court is concerned, we declare that the provisions of Sections 263 and 264, in cases in which these sections are applicable, are not controlled by Section 355 Criminal Procedure Code. To attempt to apply them really introduces confusion and amounts to amending the Act. It seems to us that the matter is really quite clear, and has only been complicated by the decision in the case of Satish Chandra Mitra v. Manmatha Nath Mitra A.I.R. 1921 Cal. 165, with which we are unable to agree. Summary trials are dealt with in two different categories. Cases under Section 263 rare unappealable. In such cases the Magistrate need not record the evidence, and he is only bound to enter the particulars mentioned in the section. In Section 264 he has to do a little more, namely record a judgment embodying the substance of the evidence. There is nothing in that section compelling him to record the evidence. Some people have the gift of remembering, repeating and embodying in a judgment evidence which they heard without the assistance of any note recording such evidence. Section 264 leaves a Magistrate, who thinks he is able to do that, perfectly free to do so if he likes, but if on the other hand, like at any rate, one member of this Bench, he finds it necessary to assist his recollection and his opinion by making, what you may call notes or private memoranda or a temporary record of the evidence to aid him in coming to a satisfactory conclusion, such notes or memoranda form no part of the record of the case. They are only the vehicle which conveys to his mind the substance of the evidence which the section requires him to embody in the judgment. The section clearly enacts that the judgment embodying the substance of the evidence which the Magistrate has heard shall be the only record, and in our view we could not order or declare that the Magistrate was bound to make something else part of the record, not mentioned in the section, without adding to or amending the section. It appears to us, with all respect to the learned Judges who decided the matter in Calcutta, that in order to arrive at the decision at which they did, it was necessary to jump over a very wide gulf. It is true, as the judgment points out, that the primary rule is embodied in Section 355, and that requires a Magistrate, in cases to which that section is applicable, to make a memorandum of the substance of the evidence in the case. That is a compulsory memorandum. Section 355, Sub-section (2), makes such memorandum, or in other words the compulsory memorandum, a necessary part of the record. The fact that such compulsory memorandum does not apply to summary trials under either Section 263 or Section 264, seems to be conclusively established by the language of Section 354. With great respect it seems to us that the judgment of the Calcutta High Court treated the voluntary memorandum, or notes, or pieces of paper, whatever you like to call it, which the Magistrate chose to use to assist himself, either in an unappealable case under Section 263, or in an appealable case under Section 264, in which he had to embody the substance of the evidence in the judgment, as on the same footing and subject to the same statutory requirements as a compulsory memorandum, which he was bound to take under Section 355. In our view the statute does not justify us in taking that view, and we hold that in cases in which Sections 263 and 264 are applicable, the Magistrate is perfectly free to take such notes as he pleases, or if he prefers, to take none at all, and whether he takes them or whether he does not, whatever notes he makes are his private property which he can treat exactly as he pleases.
2. As a matter of reasonable practice and common-sense, which ought to solve most questions without the trouble of referring to a statute at all, it seems to us that if it turned out that a case is appealable and an appeal is eventually brought, and the Magistrate happens to have, taken private notes, and when he is asked if he will lend them or provide them to the Court of appeal for the purpose of hearing the appeal, and they are still in existence, there is no reason at all why he should not do so. That is a practice which one member of this Bench has invariably followed in the exercise of original civil jurisdiction in this Court when an appeal has been brought from his judgment. A Magistrate may supply copies to the parties or send the original to the Court of appeal. This is merely an act of convenience, and courtesy. A hard and fast rule issued by the District Magistrate that every Magistrate should destroy the notes seems, on the face of it, unnecessarily to hamper the discretion of his subordinate officers. It is often of great convenience when you are asked about something which happened in a case three months ago-it may have nothing to do with an appeal, it may relate to the conduct of some professional gentleman who was engaged in the case-to be able to refer to your own private notes, which you happen to have preserved. You are thus able to refresh your recollection, just as a man of business is able to refresh his recollection as to what happened a long time ago from his books or diary; but we have no jurisdiction to dictate to the District Magistrate what he should do in this or any other matter, which is solely vested in his discretion, or to make any declaration about any order relating to such notes which he may have issued. The most we can do is to suggest, as we have done, a practical way of dealing with the matter.
3. We therefore reject the reference and direct the record to be returned to the Sessions Judge with the foregoing observations.