1. This case now comes before us by reason of its having been removed to this Court from the Court of the Magistrate of Calcutta, Northern Division, by an order made under Section 147 of the High Courts' Criminal Procedure Act.
2. The learned Standing Counsel, on behalf of the Crown, objected that the order had been irregularly made, because the Crown was not served with notice of the application for it, and was not given an opportunity of being heard upon that application. We are of opinion, however, that when, as in the present case, a conviction has been arrived at by the Magistrate, and the petitioner is actually suffering imprisonment there under, it is within the discretion of this Court to order for sufficient prima facie cause shown, on the application of the prisoner, that the case be removed, without notice to the Crown. We intimated our readiness to give time to the Standing Counsel, if he required it, for the purpose of this hearing, but he said he was quite prepared to go on with the case without delay.
3. The charge preferred against the petitioners and some other person, upon which they were tried by the Magistrate, appears in the Court book, which the Magistrate has sent up to us, in the following words: 'Defendants are charged with having, on 1st March, at Beadon Street in Calcutta, exhibited to public view certain obscene representations. Defendants are further charged with having at the time and place aforesaid uttered or recited certain obscene words to the annoyance of others: Sections 292 and 294 of the Penal Code;' and the original order or conviction made and signed by the Magistrate after hearing the evidence given on both sides appears to have been as follows: 'Defendants (2) and (3) Upendronath Doss and Omritolall Bose' (the two petitioners to this Court) 'are found guilty under Sections 292 and 294 of the Penal Code, and sentenced to suffer imprisonment for one month.'
4. The scope of each of the two Sections, 292 and 294, of the Penal Code is wide; and it is much to be regretted that the charge against the prisoners was not made specific in regard to the representations and words alleged to have been exhibited uttered, and to be obscene, before at least the accused persons were called upon to answer it. And it was certainly very important, both in the interest of the accused persons, and of the public, that the Magistrate, in his decision of the matter, should have stated distinctly what were the particular representations and words which he found in the evidence the convicted persons had exhibited and uttered, and which he adjudged to be obscene within the meaning of these sections.
5. Had the case remained as the Magistrate's book represents it, we should have been reduced to the alternative of either practically trying the case de novo or of dismissing it, upon the ground that the Magistrate had come to no finding upon which his conviction could be sustained. Fortunately, however, since the conviction has been impeached by the making of the application for the removal of the case to this Court, the Magistrate has formally drawn up his specific findings of fact, and his order thereon, and we may now safely assume that this document discloses all that in the opinion of the Magistrate is established by the evidence against the petitioners within the scope of Sections 292 and 294 of the Penal Code. (After going through the specific findings of the Magistrate his Lordship found that the evidence was not sufficient to justify the findings of fact arrived at by the Magistrate, and that the words and passages were not obscene within the meaning of Sections 292 and 294, and continued:) It thus appears to us that the grounds upon which the Magistrate has placed his conviction in this case fail; and we can discover in the evidence no other ground upon which it could legally be supported. It follows that the conviction must be quashed, the sentence set aside, and the petitioners released from the obligation of their recognizances.