JUDGMENT Prinsep, C.J. - The jury unanimously acquitted the prisoner, Bhut Nath Ghose, who was charged with the murder of one Haridas Pal and the Sessions Judge has referred the case to us under sec. 307, Cr. P. C., on the ground that the verdict is entirely against the weight of evidence in the case. In his letter of reference to this Court, the Sessions Judge does not discuss that evidence or show on what portion of it he is of opinion that the accused should have been convicted. He merely states "the evidence in the case has been discussed at great length in my charge to the jury and I beg that that charge may be taken as part of this reference. It is unnecessary for me, therefore, to state the facts of the case in this letter again." Although it may be unnecessary for the Sessions Judge to state the facts over again, it was certainly necessary for him to state clearly in his reference on what portion of the evidence, in his opinion, the accused should have been convicted, for, it is impossible to suppose that the Sessions Judge in this case relies upon the entire evidence on the record. The law also requires that, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the jury, the High Court shall pass final orders in the case. It is impossible to give due weight to the opinion of the Sessions Judge, for, we have no opinion of that officer except that the verdict of the jury is contrary to the weight of evidence. We think, therefore, that in a case of this description, it is the duty of the Sessions Judge to set out on what portion of the evidence or on what facts disclosed by the evidence, in his opinion, the accused should have been convicted. We have now to consider the case on its merits upon such materials as are before us. We are unable, at the first hearing, to deal with this case because there was not on the record the first information of the occurrence given to the Police. We have already had occasion more than once to refer to the irregularities committed by the Police in this respect. We are unable, at the first hearing, to deal with this case because there was not on the record the first information of the occurrence given to the Police. We have already had occasion more than once to refer to the irregularities committed by the Police in this respect. It is apparently thought that the information on which an investigation is commenced is not the first information of an offence and that when in the course of the investigation something has been elicited which shows that an offence has been committed, a first information can be recorded. This is certainly not what the law contemplates. In nearly every trial, it is important that it should be known to the judicial officer what were the facts given out immediately after the occurrence and reported to the Police and the object of a first information is to render him so acquainted. We had not in this case the statement of the person who first gave the information to the Police and so brought the police-officer to commence the investigation on the spot. We accordingly directed the diary in which the first information is said to have been recorded to be sent for. We observe that the police-officer has stated that, in addition to the entry in the diary, he made a memorandum of what the informant said. That memorandum should have been produced but it is not forthcoming. When the police-officer commenced his investigation, he was shown some traces of blood apparently indicating how the body of the wounded person had been carried off and, after some difficulty, the body itself was discovered in water distant more than two miles from the alleged scene of murder. The post mortem examination leaves no doubt that this man met with a violent death and it has been amply proved that the body was that of Haridas Pal. In the first information recorded in the diary, we find that it is stated that Haridas Pal probably met his death at the hands of the prisoner in consequence of ill-feeling on account of one Bhuti Bewa with whom they both had an intrigue. It seems that Haridas had been employed for some time by Bhuti to attend to her cows and clean the premises and that, in course of time, he had become her lover. It seems that Haridas had been employed for some time by Bhuti to attend to her cows and clean the premises and that, in course of time, he had become her lover. This was resented by the prisoner who had also an intrigue with her. We do not believe the evidence of Sashi Bhusan Ghose, the nephew of the deceased, that they were not on speaking terms, but it seems likely from the cause stated, that they were not on friendly terms. On the morning of the 18th, Sasi Bhusan Ghose tells us that Bhuti came to his house and asked why his uncle, the deceased, had not come as usual to sweep out the premises. He said that he had not seen his uncle and they accordingly made a search for him but found his door closed from inside on opening it, they found that he was not there and suspicion was accordingly aroused. We do not believe the statement of Sasi Bhusan Ghose that Bhuti thereupon said that he had probably been murdered. There was some delay in giving the first information to the Police as naturally Sasi Bhusan Ghose first made a search for his uncle. Eventually, on being shown blood marks on the ground at some distance, he gave the information as described. On the 21st, that is to say, on the day after he had commenced his investigation, the police-officer sent in the prisoner Bhut Nath to have his confession recorded by the Magistrate under sec. 164, Cr. P. C., and we find that, at the same time, he made a report to the Magistrate to the effect that as Bhuti and Bhola Nath who had given information regarding the guilt of the accused were likely to retract their statements, or, as he himself expresses it, "their evidence might be lost," he had taken recognizance for their appearance before the Magistrate on the 22nd, that is, on the same day as that on which the prisoner's statement was recorded, in order that their statements might be reduced to writing. It would seem from this that the Police desired to represent that these persons attended voluntarily to make statements as witnesses and were not sent under custody. It is remarkable that they were told to attend and appear before the Magistrate on the same day that the prisoner arrived and his statement was recorded. It would seem from this that the Police desired to represent that these persons attended voluntarily to make statements as witnesses and were not sent under custody. It is remarkable that they were told to attend and appear before the Magistrate on the same day that the prisoner arrived and his statement was recorded. It is impossible to believe that these two persons who were sent as witnesses were not sent under custody at the same time with the accused. Indeed, we find ample ground for believing from the evidence that they had, from some time before they came before the Magistrate, been in detention by the Police and we believe that this detention continued until they were produced before the Magistrate. The conduct of the Police, therefore, is open to severe censure. We also think that the Magistrate should have abstained from recording the evidence of Bhuti Bewa and Bhola Nath Ghose as witnesses unless he had some assurance from them that they had attended voluntarily and were making statements to him voluntarily. In the case of an accused person, a Magistrate is bound to make a certificate to that effect. In the case of witnesses sent up in the manner described, it is important that there should be equal safeguard although they are not required by law. We would refer to Empress v. Jadav Das 4 C. W. N. 129 : s. c. I. L. R. 27 Cal. 295 (1899) and Bajrangi Lall v. Empress 4 C. W. N. 49 (1899) in which similar proceedings were condemned. The law apparently does not contemplate proceedings such as those now before us. These statements, so far as we can learn, were not recorded in the presence of the accused, for we find no cross-examination and also find that, when the judicial enquiry commenced fifteen days later, both these persons were examined as witnesses and tendered for cross-examination. It is not shown in the evidence what happened to these persons after they had given their statements to the Magistrate under sec. 164, C. Cr. It is not shown in the evidence what happened to these persons after they had given their statements to the Magistrate under sec. 164, C. Cr. P. When under trial in the Sessions Court, Bhola Nath denied the truth of the statements previously made by him and he stated that he was obliged to make them through ill-treatment at the hands of the Police or rather of one Golam Rabani, a pensioned police-officer, who took an active part in the investigation in assisting the Police Sub-Inspector. His statement previously made to the Magistrate in the course of the judicial enquiry has been made evidence in this case under sec. 288, C. Cr. P. But we would here point out, as has been stated in the case of Queen v. Amanullah 12 B. L. R. App. x : s. c. 21 W. R. Cr. 49 (1874), that it is impossible to say which of these two statements was true so as to enable any one to rely upon either. This was especially important in the present case because the evidence of Bhola Nath stands alone in respect of the incident which he proposes to relate. He says that, on the night before the police-officer arrived, he was aroused by the prisoner who was his brother-in-law and was asked to help and assist him in the removal of a dead body from the water in which it had been placed and that he refused to lend his assistance. On the face of it, this statement is incredible. If, as is stated, Bhut Nath removed the body to such a distance, we think he must have had some assistance. Indeed, in the statement which he made to the Magistrate, he mentions two others as having assisted him. It is, therefore, extremely unlikely that he should have admitted his guilt to another person even his relative who had not acted on the previous occasion by asking him to remove the dead body and so implicate himself in the murder. But Bhola Nath states that he told Sasi Bhusan Ghose of this on the following morning. Sasi Bhusan is an important person in this locality being the punchayet and he would naturally be sent for by the police-officer at the commencement of the investigation. It does not appear that Sasi Bhusan ever told this to the police-officer. But Bhola Nath states that he told Sasi Bhusan Ghose of this on the following morning. Sasi Bhusan is an important person in this locality being the punchayet and he would naturally be sent for by the police-officer at the commencement of the investigation. It does not appear that Sasi Bhusan ever told this to the police-officer. Indeed, from the police-officer's evidence we learn that Sasi Bhusan was not examined until the 2nd February, that is, eleven days later and although Sasi Bhusan has been examined as a witness at this trial, he has nowhere mentioned a word as to having been told by Bhola Nath of this matter. On the merits, therefore, we think that the evidence of Bhola Nath before the Magistrate is not reliable and, indeed, untrue, and when we find it repudiated by Bhola Nath himself at the trial and attributed by him to improper influence in the course of the investigation, we have no hesitation in saying that the Sessions Judge did not show a proper discretion in allowing the former statement to be treated in evidence. 2. The other evidence in the case consists of the evidence of Bhuti who, if the murder was committed by the prisoner, must have been an eye-witness. She says that, on coming to her house that evening, the deceased was attacked by the prisoner who dragged him away and that is all that she knows of this matter. Now, opposed to this we have the prisoner's confession to the Magistrate before the judicial enquiry which is relied upon as evidence against him. He says that he and two others were sitting at Bhuti's house when the deceased came and commenced quarrelling, upon which he was beaten and killed. We are not prepared to accept the evidence of Bhuti, as it stands. Indeed, we find ourselves altogether unable to believe that any one person could have carried the body of the deceased along the track described to a distance of over two miles. 3. The last piece of evidence placed before us is that, when the prisoner was arrested and brought before the investigating police-officer, it was noticed that a green cloth that he was wearing had some stains of blood and it also showed signs of having been recently washed. The cloth had been sent to the chemical examiner who reported that it bore signs of mammalian blood. The cloth had been sent to the chemical examiner who reported that it bore signs of mammalian blood. The police-officer states that his attention was then attracted by the fact that the prisoner was wearing some green and apparently new cloth and he asked him where his former cloths had been placed. The discovery or rather the production of these cloths was apparently due to Golam Rabani, the pensioned police-officer mentioned before, who resided in the neighbourhood and apparently assisted in the investigation. It is unnecessary to describe the evidence regarding the production of these articles. It is sufficient to say that it is by no means clear how and by whom they were produced and the evidence is specially obscure as regards the production of the last article. The fact that this cloth bore signs of blood is explained by the prisoner as being due to his having itch and it is also shown that he was at that time suffering from that disease. The last part of the evidence consists of the confession recorded by the Magistrate under sec. 164 when the prisoner was first brought before him on the 22nd January, soon after his arrest and before the judicial enquiry had commenced. When that inquiry was being held, the prisoner denied the truth of that statement alleging that he had made it for fear of being beaten and, in his examination before the Sessions Judge, he makes a similar defence. We entirely agree with the Sessions Judge in expressing our strongest disapproval of the method adopted by the Joint Magistrate in his examination of the accused. The Joint Magistrate has proceeded as if he was acting on behalf of one of the parties to a case and was cross-examining one of his own witnesses who had become a hostile witness. He has also, in the questions put, in many respects assumed something in order that he might obtain some further information from the accused. The examination which he was then conducting was under sec. 342, Cr. P. C., which permits an examination to be made solely for the purpose of enabling the accused to explain facts appearing against him. He has also, in the questions put, in many respects assumed something in order that he might obtain some further information from the accused. The examination which he was then conducting was under sec. 342, Cr. P. C., which permits an examination to be made solely for the purpose of enabling the accused to explain facts appearing against him. The examination, on the other hand, is directed towards obtaining from the accused some explanation in regard to two matters which he had previously mentioned in his confession and had already repudiated as untrue and, in the same way, without explaining the charge on which he was about to commit the accused, he made a further examination which is open to the objection already stated and to the additional objection that in it he endeavours to elicit further information in regard to the statement said to have been made by Bhola Nath. The case, therefore, depends simply on the marks of blood said to have been found in the green cloth worn by the accused and on the fact that, in consequence of ill-feelings on account of Bhuti, he had probably a motive for doing injury to the deceased. We cannot on this slender evidence convict the prisoner of murder and we think that, on the case as disclosed, the jury had ample ground for their verdict of acquittal of the prisoner. The prisoner must, therefore, be released.