1. Heard the learned advocate for the petitioner. No one appears to oppose the rule. The facts briefly are as follows: The petitioner Khoda Bux Mal was tried by ft Third Class Magiatrate Mr. B. Kahtnan at Munshiganj on a charge of theft. The learned Magistrate was of opinion that the sentence which he could pass as a third class Magistrate would not be adequate and he therefore purported to act in accordance with the provisions of Section 349, Criminal P. C, and submitted the record to the Sub-divisional Magistrate so that an adequate sentence may be passed. This learned Magistrate, Mr. B. Rahman, in forward-ing the record passed what has been described by the Sub-divisional Magistrate as a judgment and the 'judgment' consists of 81 typewritten pages (certified oppies). I mast confess that this learned Magistrate has been responsible for wasting the time of everybody by passing a 'judgment' of this description in a simple case. Section 349, Criminal P. 0. does not require a Magistrate of the second or third class to write 'a judgment' at all. All he is required to do is to record his opinion and submit the proceeding and forward the accused to the District Magistrate or the Sub-divisional Magistrate really do not understand why learned Magistrates do not take the trouble of acquainting themselves with the bare sections of the Code of Criminal Procedure under which they purport to act. The section is perfectly clear. It says nothing about a judgment being recorded by the 880ond or third class Magistrate who decides to act under Section 349. Section 349(1) clearly says that such Magistrate may record his opinion 'that the accused is guilt; and that be ought to receive a punishment different in kind from, or more severe than, that which he is empowered to inflict.' The learned Magistrate here has described his opinion of 81 pages (certified copies) as a 'judgment.' This is the first error which has been com. Knitted but this would not have necessarily resulted in my setting aside the final order passed in this case had it not been for the errors com. mitted by the Sub-divisional Magistrate to whom the case was Bent for action under Section 349(2), Criminal P. C, and by the learned Additional Sessions Judge, Mr. Baker, to whom an appeal was taken from the decision of the Sub-divisional Magistrate.
2. When the matter was placed before the Sub divisional Magistrate he passed an 'order.' It was his duty not to pass an 'order' but to pas a judgment. If he had looked into the provision of Section 349(2), Criminal P. 0., he would have found that he is directed 'to pass such judgment, sentence or order in the case as he thinks fit and as is according to law.' The learned Sub-divisional Magistrate Mr. Aminulla does not pass any judgment at all. He says that he has perused the long and detailed judgment of the trying Magistrate. I sympathies with him for having had to do this. Then he goes on to say that he is convinced that the Magistrate has come to the right conclusion and proceeds to pass sentence upon the accused.
3. Now this is no judgment at all. What a judgment should contain is mentioned in Section 367, Criminal P.C. It says that it shall contain the point or points for determination, the decision thereon and the reasons for the decision. Here there is no statement of the points for decision, no decision is given regarding any points and no reasons are given for the decision of the learned Sub-divisional Magistrate wbereby he convicts the accused. The statement 'I am convinced that the Magistrate has come to the right conclusion and his finding is correct' is certainly not a reason for a decision. Against this 'order' of Mr. Aminulla an appeal was taken, as I have said before, to Mr. Baker, the Additional Sessions Judge of Dacca. He has written a judgment but in dealing with the objection on behalf of the petitioner that the Sub-divisional Magistrate has not reoorded a judgment within the meaning of Section 367(l), Criminal P. C, in accordance with the directions given in Section 849(2) of the aforesaid Code the learned Additional Sessions Judge quite erroneously, in my opinion, says that the learned Sub-divisional Magistrate has complied with the provisions of the aforesaid sections. This is what he says:
It is contended however that the learned Sub-divisional Magistrate should himself have recorded a full judgment before conviotlng and sentencing the appellant. That was not necessary. All that he was required to do by Ss S49 (2) and 387 (1), Criminal P. C., was to give the points for determination, his decision thereon and his reasons therefor. He in fact heard further arguments and adopted the findings of fact arrived at by the trying Magistrate. His order shows this He in my opinion that order complies with the provisions of the law.
4. This is an entire mis-statement of the law. As I have said before the Sub-divisional Magistrate is bound to pass a judgment and the judgment must be according to law, A judgment is not according to law unless it complins with the provisions of Section 867(1), Criminal P C. As I have pointed out before, the learned Sub divisional Magistrate has not complied with the provisions of s 367, and in fact he does not even pretend to comply with those provisions as he styles what he has written to be an 'order' and not a 'judgment.' There are innumerable decisions of this Court and other Courts regarding the interpretation of Section 367(1) and I should have thought that the requirements mentioned therein are by now sufficiently well known. It is too late in the day to say now that a statement in these terms 'I am convinced that the Magistrate has come to the tight conclusion and his finding is correct' amounts to a judgment within the meaning of 8. 867, Criminal P. C.
5. The rule is made absolute. The order of conviction and the sentence passed on the petitioner are set aside; in the circumstances of this case, I direct that the case be tried de novo by a First Class Magistrate other than Mr. Aminulla to be appointed in this behalf by the learned District Magistrate.