O'Kinealy and Jenkins, JJ.
1. This is a rule calling upon the Magistrate of the District of Gya to show cause why the order of the Sessions Judge of that district under Section 123 of the Code of Criminal Procedure remanding a case under that section for further inquiry by the Deputy Magistrate should not be set aside, on the grounds, first, that under Section 123 the Judge was not competent to remand the case to the Deputy Magistrate to take evidence; and, secondly, that the conditions and limitations imposed upon persons who may have to give security are not recognized by The law.
2. Under Section 123 the Judge, if he thinks it proper, after examining the proceedings sent to him by the Magistrate, may require any futher evidence that he thinks necessary, before passing orders on the case. Ordinarily where a Court requires further evidence, that evidence must be taken by the Court itself. Under the Code where a higher Court has power to direct an inferior Court to take evidence, specific powers are given. This may be seen by comparing Sections 123, 375 and 428 of the Code. In this case no such specific powers are given, and we think that the Judge lias no power to remand such a case to the Deputy Magistrate.
3. The second point on which the rule was granted is answered by the Magistrate of Gya himself in the following words: The limitations imposed by the Deputy Magistrate with respect to sureties do not prevent the petitioner from offering any person as surety, but simply convey to him an intimation as to the class of persons, who in the opinion of the Deputy Magistrate should be offered as sureties.
We are not now deciding whether the applicant in this case was prevented by the order of the Deputy Magistrate from offering any person he thought fit as surety. What we are deciding is whether the order of the Deputy Magistrate is right or wrong; and we think that if the Magistrate had directed his attention to that part of the rule and not changed it into one regarding the powers of the applicant, he would have done well. We think that the order of the Sessions Judge is wrong on both points. We make the rule absolute, and direct that the case be taken up by the Sessions Judge and re-tried. Such evidence as he may require he must take himself.