1. I think this Rule must be made absolute to this extent that the judgment of the Appellate Court, dated the 8th March 1920, so far as it affirms the order passed against the two petitioners Jogendra Kumar Nag and Gopi Krishna Baksi, must be set aside and the case be remitted to that Court for the appeal to be re-heard.
2. The objections taken to the judgment of the Appellate Court are two fold, first, in regard to its finding on the matter of association, and secondly, in regard to the evidence which has been admitted into consideration. There were four persons placed on their trial and the matter of association was dealt with very summarily by both the Courts. The first Court remarks: 'The association of these accused in order to commit thefts and burglaries has been proved to my satisfaction.'
3. The Appellate Court says that 'their association for the commission of crime has been established. They are close neighbours and they are found to be implicated in a good many cases together.' I doubt whether that finding is sufficient to comply with the requirements of paragraph 4 of Section 117 of the Criminal Procedure Code. When the Magistrate re-hears the appeal, the first question which be will have to dispose of is whether the case is one in which it was open to the first Court to try the two accused jointly.
4. Then with regard to the second objection it is pointed out that the Magistrate has alluded twice over to the Police history sheets. In acquitting one of the men who had been bound down, he says that no history sheet was proved by the Police regarding that appellant. Then when he turned to the two present petitioners, he remarked that their 'history sheets had been opened and maintained at the Thana,' as though he thought that the existence of history sheets kept by the Police was a matter which he might take into his consideration. Again, objection is taken with very good reason to this sentence, 'the Superintendent of Police whose departmental sanction was required before a prosecution was started was satisfied that this case was not the outcome of a party faction.' A Judge may not delegate his judicial functions to the Police in this manner. Next with regard to the seven first information reports, we are told that the Appellate Court has erred in saying that these accused were specifically implicated in each one of those crimes. The evidence to my mind is not discussed quite so fully as it should have been; but that is a small matter compared with defects which I have already mentioned.
5. The appeal must be re heard and a judgment recorded in accordance with the provisions of the law. The appeal will be re-heard by the District Magistrate himself or by some other competent Magistrate whom the District Magistrate may nominate.
6. The petitioners will remain on the same bail pending the disposal of the appeal.