JUDGMENT Henderson, J. - This is a Rule calling upon the Deputy Commissioner of Lakhimpore to show cause why the Petitioner's appeal should not be reheard by the Sessions Judge, or why such other suitable order, as may seem necessary, should not be passed. The facts are these. The Petitioner is undergoing his trial for falsification of accounts before a Deputy Magistrate of Dibrugarh. In the course of the trial, he filed an application under sec. 443 of the Code of Criminal Procedure, claiming that the special procedure of Chapter XXXIII of that Code should be applied to the case. The Magistrate dismissed the application. He then appealed to the Sessions Judge. In view of the order we propose to make, it will not be necessary to discuss in detail what took place in the Court of the Sessions Judge. Suffice it to say that he dismissed the appeal. The Petitioner then obtained this Rule. On behalf of the Crown, the learned Deputy Legal Remembrancer took a preliminary objection on the ground that we have no power to interfere in view of the provisions of sub-sec. (2) of sec. 443 which are in these terms:- Where the Magistrate rejects the claim, the person by whom it was made may appeal to the Sessions Judge, and the decision of the Sessions Judge thereon shall be final and shall not be questioned in any Court in appeal or revision. 2. In my opinion, that provision is to be interpreted to mean that it is not open to us to say that this is a case in which the special procedure of Chapter XXXIII ought to apply when the Sessions Judge has come to the conclusion that it is not. I am certainly not prepared to give it any wider interpretation than that and to say that, even though the provisions of the Code are entirely ignored from start to finish, this Court will have no power to put the matter right. 3. When the learned Magistrate dealt with the matter, he certainly purported to deal with it on the merits, but in view of what he said, we have little doubt that he really dismissed it because he thought that it was a dodge. That, of course, is not really relevant to the question which he had to decide. 3. When the learned Magistrate dealt with the matter, he certainly purported to deal with it on the merits, but in view of what he said, we have little doubt that he really dismissed it because he thought that it was a dodge. That, of course, is not really relevant to the question which he had to decide. Under the section, the Magistrate is to hold such enquiry as he considers necessary and to allow the accused a reasonable opportunity to produce such evidence as he thinks necessary in support of his claim. In the present case, the Magistrate refused to give him any opportunity to produce evidence at all. That alone is quite sufficient to lead us to hold that the proceedings have not been conducted in accordance with law. 4. We, therefore, make this Rule absolute and set aside the order of the learned Judge dismissing the appeal and the order of the Magistrate dismissing the application, and we direct the Magistrate to give the Petitioner an opportunity to produce evidence and to dispose of the matter in accordance with law. Biswas, J. 5. I agree. I certainly refuse to hold that sub-sec. (2) of sec. 443 is intended in any way to bar the High Court's power of revision in a case like this where the express provisions of the statute are not complied with. The words of sub-sec. (2) are that where the Magistrate rejects the claim, the person by whom it was made may appeal to the Sessions Judge, and the decision of the Sessions Judge thereon shall be final and shall not be questioned in any Court in appeal or revision. This clearly contemplates that the Magistrate should have rejected the claim in accordance with the provisions of sub-sec. (1). Sub-sec. (1) lays down that where in the course of the trial outside a presidency town of any offence specified therein, the accused person claims that the case ought to be tried under the provisions of Chapter XXXIII, the Magistrate inquiring into or trying the case, after making such inquiry as he thinks necessary, and after allowing the accused person reasonable time within which to adduce evidence in support of his claim, shall come to a finding either that the case is a case which ought to be tried under the provisions of this Chapter, or that it is not such a case. The right to make a claim that the case ought to be tried under the provisions of this Chapter is an absolute right of the accused and cannot be defeated except on the merits, and in order to come to a finding on the merits, the Magistrate is required to follow the procedure laid down in the section. He may make such enquiry as he thinks necessary: This is left to his discretion, but what is not discretionary is that he shall allow the accused person reasonable time within which to adduce evidence in support of his claim. This requirement of the section is indeed mandatory, and it is not open to the Magistrate on any grounds whatsoever to refuse this opportunity. In the present case, the Magistrate disposed of the matter without giving any time to the accused to adduce evidence, as he thought that the application was a mere pretext for obtaining a further adjournment of the case. In so doing, the Magistrate was plainly transgressing the provisions of the statute, and, in so far as he did so, I think his order was improper, if not without jurisdiction. Such an order cannot be hit by sub-sec. (2). The words "rejects the claim " in sub-sec. (2) must, in my opinion, mean "rejects the claim on coming to a finding on the merits of the claim in compliance with the provisions of sub-sec. (1) of sec. 443." The order passed by the learned Magistrate in this case was, in my opinion, therefore, not a proper order under sec. 443, sub-sec. (1), and in that view, it was the duty of the learned Sessions Judge, if he entertained the appeal, to have set it aside and put the matter right by directing the Magistrate to follow the procedure laid down in that sub-section, and give the accused an opportunity to adduce such evidence as he desired to offer in support of his claim. The learned Sessions Judge not having done this, it is our plain duty to make the order ourselves, and we direct accordingly.