SHAIK BABU Vs. EMPEROR

JUDGEMENT

(1.) On the information of the Inspector of the Colootola Police station the petitioner was, on the 17 April 1906, called upon, under Section 110 of the Code, to show cause why he should not execute a bond for Rs. 75 with one surety for Rs. 75 for his good behaviour for one year. The case was taken up on the 24 April by the third Presidency Magistrate, when according to the order-sheet five witnesses for the prosecution and nine for the defence were examined. There is, however, no record of the evidence. On the same day, the Magistrate directed that the petitioner should execute a bond for eight months with one surety, and in case of non- compliance he was ordered to undergo rigorous imprisonment for eight months.

(2.) On the application of the petitioner we issued a rule to show cause why the order of the third Presidency Magistrate should not be set aside on the ground that no evidence was recorded.

(3.) The Magistrate has in his explanation relied on Section 362 of the Code as absolving him from the duty of recording evidence in such a case and he has referred to In the matter of Jotharam Davay (1878) I.L.R. 2 Mad. 30 Earn Chandra Shaw V/s. The Empress (1831) I.L.R. 6 Cult. 575 and Schein V/s. The Queen-Empress (1889) I.L.R. 16 Calc. 799 in support of his view and the practice of the Court. The cases referred to have only a distant bearing on the question; they refer to the right of appeal by a person convicted by a Presidency Magistrate and the interpretation of Section 411 of the Civil P. C., which relates to the right of appeal.