Mitra and Holmwood, JJ.
1. On the information of the Inspector of the Colootola Police station the petitioner was, on the 17th April 1906, called upon, under Section 110 of the Code, to show cause why he should not execute a bond for Rs. 75 with one surety for Rs. 75 for his good behaviour for one year. The case was taken up on the 24th April by the third Presidency Magistrate, when according to the order-sheet five witnesses for the prosecution and nine for the defence were examined. There is, however, no record of the evidence. On the same day, the Magistrate directed that the petitioner should execute a bond for eight months with one surety, and in case of non-compliance he was ordered to undergo rigorous imprisonment for eight months.
2. On the application of the petitioner we issued a rule to show cause why the order of the third Presidency Magistrate should not be set aside on the ground that no evidence was recorded.
3. The Magistrate has in his explanation relied on Section 362 of the Code as absolving him from the duty of recording evidence in such a case and he has referred to In the matter of Jotharam Davay (1878) I.L.R. 2 Mad. 30 Earn Chandra Shaw v. The Empress (1831) I.L.R. 6 Cult. 575 and Schein v. The Queen-Empress (1889) I.L.R. 16 Calc. 799 in support of his view and the practice of the Court. The cases referred to have only a distant bearing on the question; they refer to the right of appeal by a person convicted by a Presidency Magistrate and the interpretation of Section 411 of the Code of Civil Procedure, which relates to the right of appeal.
4. Section 362 lays down that a Presidency Magistrate shall either take down the evidence of the witnesses with his own hand or cause it to be taken down in writing from his dictation in open Court in every case, in which he imposes a fine exceeding two hundred rupees or imprisonment for a term exceeding six months. The wording of the section is evidently faulty, as it is not quite reasonable to suppose that the Magistrate should make up his mind as to the sentence he would pass before the evidence is recorded. The section, however, lays down by implication that the Magistrate may not record evidence, when he intends, if he convicts the accused, to impose a fine not exceeding Rs. 200 or to pass a sentence of imprisonment for a term not exceeding six months. Reading Section 362 with Section 411 it may be inferred that a Presidency Magistrate need not record evidence in a case, which under Section 411 is not appealable. But it does not necessarily follow from these sections that the framers of the Code intended that a Presidency Magistrate was not bound to record evidence or notes of evidence in any case in which an appeal does not lie. Sections 362 and 411 do not in themselves warrant such a conclusion.
5. Section 117, Sub-section (2) directs that in a case for enquiry as to security for good behaviour, the enquiry shall be made in the manner prescribed for conducting trials and recording evidence in warrant cases, except that no charge need be framed. Section 856 directs that in warrant cases the evidence of each witness shall be taken down in writing in the language of the Court by the Magistrate. But the operation of Section 356 is limited to Magistrates other than Presidency Magistrates, and so a Presidency Magistrate is not bound to record evidence in every warrant case. He is bound to record evidence only in cases coming under Section 362. It would then follow that a Presidency Magistrate is not bound to record evidence in any summons cases or warrant cases or cases in which enquiries have to be made as in summons cases or warrant cases, except where he may impose a fine exceeding two hundred rupees or imprisonment for a term exceeding six months.
6. It has been contended before us that as the petitioner before us has been directed to suffer rigorous imprisonment for eight months, in case of his default to execute a bond or procure a surety, the order of the Magistrate amounts practically to an order of imprisonment for eight months, and Section 362 requires that the Magistrate should record evidence in such a case. The section however, speaks of substantive sentence of imprisonment, and not imprisonment on the failure of the accused to carry out an order as to fine or security. Schein v. The Queen-Empress (1889) I.L.R. 16 Culo. 799.
7. We are therefore of opinion that the Magistrate was not bound to record evidence in the case before us and the only ground, on which we issued the rule, failing, it is discharged.
8. At the same time we shall point out that it is desirable that the Presidency Magistrates should keep some record of the statements made by witnesses or that their judgment should indicate what these statements are, so that the High Court as a Court of Revision may judge of the propriety or legality of the orders passed by them.