1. This case has an unfortunate history inasmuch as it came before this Court on reference and was sent back to the learned District Magistrate for him to hear and determine the appeal on its merits, he having previously summarily rejected it. The District Magistrate has now heard the appeal and affirmed the conviction which was a conviction under Section 325, Indian Penal Code, on the ground that the accused had caused grievous hurt to the complainant. The occurrence apparently took place on 10th April, 1928, when the complainant was cutting his bamboos and the accused's party consisting of his two sons came upon the scene and, according to the judgment of the trial Court, there was an exchange of blows on the result of which three persons on each side were injured.

2. The main question which is argued before this Court in revision is that the learned trial Magistrate went to the spot for the purpose of inspecting and for the purpose of appreciating the evidence but in the result he went beyond his jurisdiction inasmuch as he introduced his own evidence, if it may be so described, into the case. It is quite clear from the judgment as well as from the report of the local inspection that he measured up the plot and came to a certain and definite conclusion as to whether, the bamboos, the subject-matter of the dispute, were on plot No. 254 as it is alleged by the prosecution or on plot No. 1199 as alleged by the defence.

3. I have carefully considered this judgment and am forced to the conclusion, which I regret, that the learned Magistrate did go beyond his jurisdiction in making this local inspection. It is almost impossible for this Court to lay down the line of demarcation between the exercise of his jurisdiction under Section 556 of the Code and what appears to have taken place in this case. There are authorities on this question one of this Court, but this case can be decided without any reference to the authorities, for the reason that it seems to me to be abundantly clear that on what actually took place there is no doubt that the learned trial Magistrate quite bona fide did create evidence and introduce it into the case for the purpose of his decision.

4. Now, the only question on this point is whether in spite of this illegal exercise of the jurisdiction of the Magistrate there was evidence on the main point which had to be decided apart from the report which he made as a result of the local inspection. I have perused the judgment with some care and it is only with the greatest possible difficulty that I could spell out any evidence apart from this local inspection, of the fact which was sought to be proved by the prosecution, namely that the bamboos stood on plot No. 254.

5. Now, a number of other questions have been raised, but in the result it seems to be unnecessary to consider them. I have definitely come to the conclusion that at any rate the applicant would be entitled to have the case remitted to the Court of the trial Magistrate to consider the matter and hear and determine it according to law. But, having regard to the history of the case, I am not prepared to make that order. In the result the only order that I can make is that the conviction of the applicant must be set aside.