1. A rule has been issued in this case calling upon the District Magistrate, Gaya, to show cause why the conviction and sentence passed upon the petitioners should not be set aside on certain grounds mentioned in the petition. The ground which appears to us to be the only one on which at present the petitioners can succeed is the fourth which is in these terms: 'That the telegram on which the learned Sessions Judge has relied is not admissible in evidence and the Sessions Judge has erred in using it in evidence against the petitioners.' The way in which the telegram was used is this. The first information did not contain enumeration of facts on which the prosecution now rely, and this led the learned Judge of the appellate Court to say, 'I should have been disposed to regard this omission as highly suspicious, were it not that a telegram had been sent by this very Shamat from the village at 1-35 P.M., on the day before informing the Collector of Gaya that the crops had been plundered and that four men were about dead.' But there is no direct proof of this telegram which entitled the Court to admit it in evidence. The learned Judge, however, sought to escape from this by relying on Section 88 of the Evidence Act. But before that section can be utilized, there must be proof that means legal proof, that the message had been forwarded from the telegraph office to the person to whom such message purports to have been addressed. Admittedly there is no such proof, and admittedly also the telegram cannot be held to be proved by virtue of anything contained in Section 88. Having regard to the indication of opinion by the learned Judge to which I have drawn attention, the only course that we can pursue is to set aside his order and send back the case for re-determination by the appellate Court, leaving out of consideration the telegram which has not been proved.
2. We have been asked to give some direction as to the admission of evidence for the purpose of further proof but that we must decline to do at this stage.
3. The accused will remain on the same bail as before.