1. This matter has been referred to us under Section 438, Criminal Procedure Code, by the District Magistrate of Howrah. It appears that the opposite parties were convicted under Section 9, Opium Act of 1878, of being in illegal possession of a large quantity of opium. The Magistrate has convicted them and sentenced them each to pay a fine of Rs. 1,000 or in default to suffer six months' rigorous imprisonment. The opposite parties appealed against their conviction and sentence to the Sessions Judge of Howrah who dismissed the appeal. The District Magistrate, for the reasons which he gives in his letter of reference, considers the sentence inadequate and he recommends its enhancement. The learned Advocate who appears for the opposite parties has submitted that inasmuch as the District Magistrate is inferior to the Sessions Judge for the purposes of Section 435, Criminal Procedure Code, we cannot or at any rate should not interfere. He has cited various authorities to us which lay down limitations on the powers of the District Magistrate to call for the records and to report to the High Court in cases where the matter has already been dealt with by a Sessions Judge. None of these cases is directly in point because as is conceded, the Sessions Judge, in dealing with the opposite parties appeal had no power to do what we are asked to do, namely to enhance the sentence passed on the opposite parties. It, therefore, cannot be said that the District Magistrate has reported the case to us with a view to our reversing the order of dismissal made by the Sessions Judge sitting in appeal.
2. While we do not feel justified in holding that in the circumstances of the particular case the District Magistrate had no power to call for the record from the Deputy Magistrate's Court under Section 435, Criminal Procedure Code, or to make a report to the High Court under Section 438, Criminal Procedure Code, we feel that it is not desirable that we should entertain the matter on a letter of reference addressed to us by a District Magistrate when the facts of the case have already been brought to the notice of the learned Sessions Judge in the appeal. It was suggested to us that as the matter came before the Sessions Judge in his appellate jurisdiction he had no power himself to report the case for orders under Section 438. We understand that contention is not now pressed and we certainly are not disposed to accept it. In the circumstances, having regard to the way that the case has been brought to our notice, we do not consider that we should take any action. The reference is, therefore, rejected.