1. This was a Rule calling upon the District Magistrate of Rungpur to show cause why the conviction and sentence passed upon the petitioner under Section 500 of the Indian Penal Code should not be set aside on the grounds, firstly, that the learned Sub-Divisional Magistrate had excluded important evidence for the defence, and secondly, that the whole of the evidence had not been heard by Babu D.K. Mitter and that, therefore, the conviction by him was without jurisdiction.
2. As regards the first ground the Magistrate now explains that in view of the evidence of the first witness for the defence, the document could have been of no value. But we can hardly agree that the value of a document can be judged before it is produced and inspected. The consideration advanced by the Magistrate might be very cogent if they were based on an actual inspection of the document which bore out the suspicion which he derived from the oral evidence but we think that he was bound to accept the document and to look at it.
3. As regards the second point it is true that no application appears to have been made for a de novo trial and that the Magistrate action was not strictly without jurisdiction, but it certainly is most desirable in a case of defamation that the examination and cross-examination of the complainant should be held in the presence of the Magistrate who had the seizin of the case. In fact it is difficult to see how a Magistrate can adequately decide such a case without having had the complainant examined and cross-examined before him.
4. We, therefore, think that this Rule should be made absolute and that there should be a de novo hearing before the learned Magistrate after hearing the whole of the evidence. The Rule is made absolute, the conviction and sentence are set aside, and a re-hearing of the whole of the evidence is ordered.
5. The District Magistrate may make the case over to any Magistrate under him whom he thinks competent to try it.