MANI KRISHNA SEN GUPTA Vs. EMPEROR

JUDGEMENT

(1.) WE have examined the record in this case and perused the explanation submitted by the Magistrate. It appears that a warrant for the arrest of this accused was applied for on 10th October 1926, and that he was arrested on 12 October 1929. There is, therefore, no ground whatsoever for the suggestion made by the trying. Magistrate in his explanation that this accused was absconding. In our opinion, such a suggestion ought never to have been made. Further, there is no warrant whatsover for the Magistrate suggesting in his explanation that this accused's brother is a zamindar's Naiab at Kabilpur and is already trying to secure false evidence of alibi on behalf of the accused. The trying Magistrate ought to have remembered that he is not entitled to make any suggestion or representation in the explanation which he may submit in any case to the High Court of anything which is not founded on the record before him. The Magistrate is not the prosecutor. He must hold the scales evenly and a suggestion of the description referred to above to a very large extent prejudices his position as Magistrate. In this case, we direct that the accused be forthwith released on bail. The amount of bail should be determined by the Magistrate and it would be such as, in the opinion of the Magistrate would be sufficient to secure his attendance in the proceedings which may follow.