JUDGMENT Lodge, J. - This Rule was issued upon the District Magistrate of Hooghly to show cause why the conviction and the sentence under sec. 411, I.P.C. passed upon the Petitioner should not be set aside. It appears that the Petitioner was placed on his trial on a charge of being in possession of stolen property, knowing or having reason to believe the same to be stolen. Witnesses were examined both for the prosecution and for the defence but at the time of the arguments the learned trying Magistrate declined to allow the pleader appearing for the defence sufficient time to argue the case. From the learned Magistrate's explanation given to the Sessions Judge it appears that the learned Magistrate wished arbitrarily to fix a brief period of half an hour or so as the time within which the defence pleader was to complete his arguments. As the defence pleader intimated that he would require at least an hour and a half's time and as the Magistrate refused to allow him such time, no arguments on behalf of the accused were heard in the trial Court. The Petitioner was convicted in the trial Court and sentenced under sec. 411, I.P.C. On appeal the conviction and the sentence were upheld. In dealing with the objection that the accused was not allowed to argue his case in the trial Court, the learned Sessions Judge remarked that he could not support the attitude of the Magistrate, but all the same he could not hold that the trial was vitiated and he added that if the argument was not advanced there, it was advanced in the Appellate Court and that consequently the Magistrate's failure to hear the arguments had not occasioned a failure of justice. 2. In our opinion, as the Magistrate refused to hear arguments on behalf of the defence, it cannot be said that there was a proper trial of the case in the Magistrate's Court, and consequently the conviction and the sentence passed upon the Petitioner cannot be justified. The fact that arguments were heard in the Court of Appeal is not sufficient to rectify this error. The conviction and the sentence must therefore be set aside on the ground that there has not been a proper trial of the case. 3. The fact that arguments were heard in the Court of Appeal is not sufficient to rectify this error. The conviction and the sentence must therefore be set aside on the ground that there has not been a proper trial of the case. 3. Ordinarily it would be sufficient to remand the case for a further hearing and for disposal according to law from the stage at which the Magistrate declined to hear the defence arguments. In the present case however we are not able to do that for another reason. It is apparent from the judgment of the learned Sessions Judge that statements made by the accused person to the police during investigation were proved in the case, and were relied upon by the prosecution in order to show that the defence witnesses were not giving truthful evidence. These statements were admitted in direct contravention of the provisions of sec. 162, Cr. P.C. It would be impossible either for the Magistrate who originally tried the case or for a new Magistrate deciding the case on the present record to ignore this inadmissible evidence and it would be difficult for him to avoid being prejudiced by it. In the circumstances we see no alternative but to set aside the conviction and the sentence and directing a re-trial of the case de novo. 4. Hence ordered that the Rule be made absolute, the conviction and the sentence set aside and the case remanded for re-trial de novo by some Magistrate other than the Magistrate who originally tried the case. The Petitioner will remain on the same bail as before. Pal, J. I agree.