JUDGMENT 1. These three applicants were tried and convicted by the Deputy Magistrate of Ranchi under sec. 342, I.P.C., and the second and third applicants also under sec. 379. The convictions and sentences were upheld by the Deputy Commissioner of Ranchi. A rule was issued to show cause why the convictions and sentences should not be set aside on the ground that there was misjoinder of charges and of accused persons; and why the order dismissing the appeal should not be set aside and the appeal reheard on the ground that the Deputy Commissioner relied upon police diaries which were inadmissible in evidence. 2. The Magistrate has sent in an explanation; but we do not think it refutes the objection made that the Deputy Commissioner has used the police diaries as evidence. What he has done was to look into the police diaries and take the facts and statements written therein as material which would help him to come to a finding on the evidence in this case; but that is not the intention of the law : because doing that is really using the police diaries as evidence. What he should have done was to discover out of the police diaries any matter which was important, and then by calling for the necessary witnesses or documents have that matter properly proved in evidence in legal shape. And when he had so obtained that matter, he could have dealt with the whole case on all the evidence. But unless that is done, statements made in the police diaries cannot be used for the purpose for which be has used them. 3. We, therefore, set aside the Deputy Commissioner's order and direct that the appeal be reheard. 4. It is unnecessary for us to pass any opinion with regard to the first ground taken in the rule. The Magistrate has stated in his explanation that the whole incident formed one transaction with one purpose running through the whole. Whether that is so or not, and whether the charges could be legally joined or were bad for misjoinder, will be decided when the appeal is reheard. 5. We, therefore, make the rule absolute, and set aside the Deputy Commissioner's decision and direct that the appeal be reheard by the Judicial Commissioner of Chota-Nagpur. Pending the hearing of the appeal, the Petitioners will remain on bails