1. This reference has arisen out of a case instituted under the provisions of Section 488 of the Code of Criminal Procedure by a widow for orders as regards the maintenance of an illegitimate child of hers by one Srimanta Ghosh. The Deputy Magistrate directed that Srimanta Ghosh should pay a sum of Rs. 5 per month for the maintenance of the illegimate child. Against this order an application for revision was made before the learned Sessions Judge of Pabna and Bogra. The learned Sessions Judge found on examination of the record that the trial had been vitiated by refusal on the part of the Trying Magistrate to examine a witness who was said to be deaf, but who could speak and write : and further that the evidence in the case had not been recorded in the manner prescribed by the Code.
2. As regards this last point, it appears to us that the record of the evidence as it stands cannot be described as a memorandum of the evidence which the Magistrate, under the provisions of the Code of Criminal Procedure, was under an obligation to make. We think that the record of the evidence should have been fuller.
3. As regards the first point, it appears to us that the Trying Magistrate was clearly wrong in not examining one Nagendra Sircar, who is deaf but who can speak and write. We can see no reason why the examination of this witness should not have been proceeded with and we think that the refusal on the part of the Trying Magistrate to examine this witness has materially prejudiced the petitioner, Srimanta Ghosh. We think, therefore, that the matter should go back for a re-hearing of the original petition presented under Section 488, Criminal Procedure Code. The Magistrate after taking all the evidence that may be adduced by the parties, will pass orders according to law.
4. The result is that we accept the reference made by the learned Sessions Judge and set aside the order of the Trying Magistrate and direct a rehearing in the light of the remarks made above.