In Re: Anonymous

Glover, J.—It does not appear that the Magistrate, when he directed further evidence to be taken u/s 422, ordered the first Court to retry the case; but even if he had, it seems to us that u/s 422, Act VIII of 1869, all that the Deputy Magistrate was bound to do was to "certify the result of the further enquiry and the additional evidence to the appellate Court." We do not understand these words to mean that the first Court is to pass any judgment; in a case remanded, but that it is to record the additional evidence or to make the further enquiry and to certify the result, leaving the appellate Court to pass judgment. Certifying "the result of further enquiry" might include an expression of opinion on the part of the officer making the enquiry; but would not, we think, justify him in passing sentence. If the law meant to give him such power, the words of the section would have left no doubt of its intention.

We understand the law to be that in all oases remanded for further evidence or enquiry u/s 422, the appellate Court itself tries the case on that evidence or enquiry, and that the Court of first instance is not required to give any opinion, and cannot record any judgment.

The alterations introduced into section 422 of Act XXV of 1861, by section 422, Act VIII of 1869, were made to prevent any enhancement of punishment in oases that had been remanded. The words of the old law were "pass such judgment, sentence or order as shall seem right;" those of the new are: "dispose of the appeal in the manner prescribed by section 419."

A Full Bench of this Court had ruled that, u/s 422 of Act XXV of 1861, an appellate Court could enhance punishment when the case has been remanded for additional evidence or for further enquiry. The section, as it now stands, amended by section 422, Act VIII of 1869, takes away that power, and places remanded cases in the same category with ordinary appeals; but it leaves the other parts of the section untouched, and nowhere says that the first Court is to do more than certify the result of the further enquiry and additional evidence.

If, as the Magistrate thinks, the Deputy Magistrate was bound to decide the case de novo on the additional evidence or enquiry, it might very easily be that the result of the enquiry and the additional evidence would never come before the appellate Court at all, for both parties might be satisfied with the second decision, and neither appeal.

The section supposes the case to remain on the appellate Court''s file, and that could only be, we think, on the supposition that the first Court''s powers were over for anything else than making further enquiry or recording additional evidence. It appears to us therefore that the Deputy Magistrate did all that ho was bound to do in sending up the additional evidence called for, and that he could not have decided the case himself, after it had been once remanded u/s 422.