1. This rule was issued calling upon the District Magistrate of Khulna to show cause why the conviction of and sentences passed on the petitioners should not be set aside on grounds Nos. 1 and 2 attached to the petition. These grounds relate to certain procedure adopted by the learned Magistrate at the trial. It was not disputed that there was an occurrence of some sort between the parties. According to the prosecution the occurrence took place in a court-yard on the plot No. 861. The alleged common object was to seize the court-yard. According to the defence the occurrence took place on plot No. 860; while the accused persons were preparing a fence they were attacked by the complainant's party who were hoping to be able to encroach on the plot No. 860.
2. Now after the prosecution witnesses had been examined and before the defence witnesses had been examined the learned Magistrate held a local inspection. According to the judgment he did so in order to follow the evidence. It appears that he was of opinion that it would enable him to decide on which of these two plots the occurrence took place. But although he held a local inspection he did not record any memorandum. We have pointed out before the danger of neglecting to follow this rule of procedure. Human memory being what it is, unless a memorandum is recorded at once there is no certainty that the Magistrate's materials will be in any way reliable. Not only did he fail to record a memorandum, but he also prepared a map which has been used as evidence both by him and by the learned Judge. It is quite clear that in doing this he placed himself in the position of a witness. Unless this sketch map is proved in the witness-box, it is impossible to use it as evidence or to say what value should be attached to it. In our opinion, the only course open is to order a retrial by some other Magistrate. We accordingly make the rule absolute, set aside the conviction and sentences passed upon the petitioners, and direct that they be retried by some other Magistrate. They will remain on the same bail pending further order.
3. I agree.