1. In this case a complaint was lodged against the accused Natabar Ghose on the 27th October 1921, under Section 408, Indian Penal Code. From the order-sheet which has been placed before us by Mr. Sanyal who appeared on behalf of the accused, it is clear that there was a protracted hearing of the case before the Sub-Deputy Magistrate of Kusht a; the case for the prosecution was not closed till the 9th June 1922, and the case for the defence was not closed till the 14th July 1922. Arguments on behalf of the prosecution were heard on the 18th July and the 25th July 1922 was fixed as the date for delivery of judgment. It appears that on the 28th July 1922, after both sides had closed their respective cases and after arguments had been heard and date had been fixed for delivery of judgment, two witnesses who were named by the prosecution were examined before the Magistrate, the Magistrate having exercised his powers under Section 549, Criminal Procedure Code. The accused rightly complains before us that the procedure which was adopted by the Magistrate was one which was entirely unjustifiable. It is pointed out on behalf of the accused that, although the terms of Section 540 are very wide, the wider the power, the more cautious should be the exercise of discretion on the part of the Magistrate. There is a great deal of force in this argument and we think that the action of the Magistrate in summoning the two witnesses on the 28th July 1922, cannot be justified on any view of the matter.
2. The conviction of the petitioner under Section 408 and the sentence imposed on him must, therefore, be set aside and the case against the accused must be re-tried. Such re-trial is to be held before a Magistrate other than the Sub-Deputy Magistrate who originally tried this case or by such Magistrate as may be nominated by the District Magistrate.
3. The accused will remain on the same bail till the disposal of the case by the new Magistrate.