1. This is a reference made by the Sessions Judge of Darbhanga under Section 438, Criminal Procedure Code. It appears that the prosecution of the petitioner before him has been directed under Section 193, Indian Penal Code with reference to a deposition given by that witness in a case against one Banku Singh. The Sessions Judge has recommended that the order directing the petitioner's prosecution should be set aside on the ground that in respect of that deposition the provision of Section 360, sub-Section 1, Criminal Procedure Code, has not been complied with. The explanations submitted by the trying Magistrate and his officer the District Magistrate show that what happened was that after the deposition had been recorded the record was handed over to the petitioner. He then proceeded to read it over himself. We are of opinion that that is not sufficient compliance with the provision of Section 360, Sub-section (1), Criminal Procedure Code, inasmuch as that sub-section requires that the evidence should be read over in the presence, that is in the hearing, of the accused, in order that the accused should have an opportunity of correcting any mistake in it. On the authority, therefore, of the case cited by the learned Sessions Judge and also on the authority of the case of Jyotisli Chandra Mukerjee v. Emperor 4 Ind. Cas. 416 : 14 C.W.N. 82 : 36 C. 955. we must hold that this deposition is inadmissible in evidence. The order for the prosecution of the petitioner must be set aside.
2. We would further point out to the District Magistrate that in this case in his order for prosecution or in any proceeding referred to therein he has failed to set out the statement alleged to be false.
3. We further find from his explanation that though he made a preliminary inquiry under Section 476, Criminal Procedure Code, and presumably examined witnesses in the coarse of that inquiry he had made no record of their statements. We do not find in the Criminal Procedure Code any provision with regard to the manner in which the evidence in such inquiry should be recorded. But we are of opinion that for further reference a summary of the statements should have been made.
4. The petitioner is discharged from his bail.