1. The petitioner who is a constable attached to the Calcutta Police has been convicted of extortion by the learned Chief Presidency Magistrate. He then obtained this rule on grounds Nos. 1 and 4 attached to the petition. At the hearing Mr. Mukherjee stated that Ground No. 1 was based upon a misapprehension and he only pressed ground No. 4 which is in these terms:
For that the order complained of is based on inadmissible evidence, e.g. the Magistrate's experiment and the police report.
2. It would have been simpler to say that the Magistrate had contravened the provisions of Section 539-B, Criminal P.C. What happened was this : The Magistrate had to determine whether he was prepared to accept the evidence of identification, the defence being that the case was one of mistaken identity. He visited the spot one evening and came to the conclusion that there was sufficient light to enable any body to mark closely the features of a stranger. Now it is laid down in Section 539-B Criminal P.C., that local inspection may foe held for the purpose of properly appreciating the evidence. It is also laid down that the Magistrate shall, without unnecessary delay; record a memorandum of relevant facts observed at such inspection. This learned Magistrate did not record a memorandum of the observation upon which his decision is based. He did not note at what distance he was able to see on the night in question. We have before pointed out the necessity of complying with this provision because, human memory being what it is, it is very difficult to place any reliance upon what the Magistrate found, unless a memorandum has been made almost immediately.
3. This however is a minor matter. The real difficulty is that the learned Magistrate has gone beyond the scope of Section 539-B of the Code. He assumes that the condition of the light and atmosphere were the same on the night that he went to the spot as they were at the time of the occurrence. Unless there is evidence on the point, the whole argument must be fallacious. Then again it is very dangerous to say that because a Magistrate who might have very good sight, strongly developed powers of observation, etc., is able to see certain things, other persons, whose powers may not be so ^well developed, may be able to do so Inasmuch as this local inspection has been made the basis of the conviction, the only (course open to us is to order a retrial. We accordingly make the rule absolute, set aside the conviction of the petitioner and the sentence passed upon him and direct that the petitioner be retried by some other Magistrate. The petitioner must surrender to his bail.
4. I agree.