JUDGMENT 1. In this case, the sentence passed on the Petitioner was enhanced by this Bench dealing with undefended criminal cases on the recommendation of the District Magistrate of Tipper ah who referred the case under sec. 438, C. Cr. P. It appears from the letter of reference that before making the reference the District Magistrate gave the accused a hearing. It, therefore, appeared to us that the provisions of cl. (2) of sec. 439, C. Cr. P., had been sufficiently complied with. That clause runs thus : " No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence." After hearing the learned Counsel for the Petitioner and giving further consideration to the matter, He think that the hearing referred to in that section should be before the Court which passes the order of enhancement and the hearing before the referring Court was insufficient. We accordingly review our order and set it aside and as the Petitioner is now represented by Counsel, this Reference No. 81 of 1917 from the District Magistrate of Tipperah will be dealt with by the Regular Criminal Bench. Pending further orders in this matter, the Petitioner will be released on bail to the satisfaction of the District Magistrate. Let the order go down at once. [The case was then placed before the Regular Criminal Bench (Teunon and Shamsul Huda, JJ.), who after hearing the Petitioner made an order sentencing the Petitioner to rigorous imprisonment for six months in addition to the sentence of fine.]