1. I on told that this is the 'first case in which revision being sought from a Sessions Judge of an order resulting from proceedings before a Sub-Divisional Officer and a District Magistrate under the badmashi section, the Sessions Judge, being himself unable to make any final order in the case, has expressed his opinion, that there is cause for interference by the High Court and referred the matter to the High Court with the recommendation that the order be set aside. Having regard to the amended procedure which is probable when the new Criminal Procedure Code becomes law, and 1o the imminence of some new legislation separeting the executive from the judicial, my decision is or very small importance and likely to be of short duration as an authority. But I am definitely of opinion that Section 435 does unable a Sessions Judge to call for the record of proccedings under Section 110, Criminal Peocedere Code, taken before an inferior Criminal Court within his jurisdiction, and that the other revisions of the Code enable him to refer the matter as he has done.
2. I am not alarmed by the prospect that other attempts may be made to follow this precedent, if it is one. Having myself read a certain number of the voluminous records of cases under Section 110, I am satisfied that no Judge would voluntarily take upon himself the task more often in his life time than he was absolutely compelled, and it would be doing scant justice to the capacity or sincerity of our Sessions Judges to assume that they will be likely to interfere in any case in which a really paramount reason for interference was not shown.
3. I do not propose to exercise an independent judgment in this case upon the merits. I am satisfied that the Sessions Judge had power to refer it, and I am satisfied that he has gone very carefully into the whole matter. He has done what I have been compelled to do more than once, submitted the whole record to an elaborate analysis in order to see whether the case was fairly tried according to law, and he has come to this conclusion. He finds the evidence for the prosecution partly inadmissible, partly inconclusive. He finds that it is hearsay, vague and unsubstantial. He finds nothing definite proved against the accused, and no evidence called against them from their ovvn village. He makes the trencliant observation that if it is impossible to get evidence from their own village because of their sinister influence, the real ground for bin ling them over would be that there was no evidence against them. On the other hand, he finds a number of persons of good character and position from their village itself and from the nerghbouring villages who speak well of these men, while nobody has been able to suggest that they have not got resources for living as they do live, without support from theft or bad means of livelihood. He holds very strongly that it would be unfair to brand there men as bad characters upon this evidence, and on the whole after a careful study of his judgment I am satisfied that if I had studied the record I should have come to much the same conclusion as he has done. I should, therefore, if the matter had come before me and I had been compelled to go through this record, have interfered in revision, and or that ground T accept the reference.
4. But there is on further ground upon which I think I should have interfered in any case. In the explanations tendered by the District Magistrate and the Sub-Divisional Officer respectively in answer to the Sessions Judge's opinion, it is stated that these gentlemen held private enquiries and confidential enquiries. No doubt a Magistrate is compelled in the performance of his duties to make private enquiries as to the character of his neighbourhood and as to the persons reputed to be of bad character and to be likely to cause trouble. These enquiries are necessary to an executive officer having to inform himself of the nature of the population committed to his charge, but where it is shown, as it appears to be shown in this case, that the Magistrate has allowed actual information ad hominem to influence his judgment in a judicial decision against particular individuals brought before him by process of law, I would have no alternative but to quash the order which was vitiated by the admission of such information.
5. I accept the reference and quash the order.