RAMADAS KELU NAIK Vs. V M MUDDAYYA

JUDGEMENT

(1.) THE petitioner has prayed that the judgment dated 19-7-1977 passed by the Sessions; Judge, North Kanara, Karwar, in Criminal Appeal No. 11 of 1977, setting aside the conviction and sentence passed on respondent 1 by the Chief Judicial Magistrate, Karwar. in CC. No. 1344 of 1976, and directing that there shall be a de novo trial by the Judicial, Magistrate First Class, Karwar, after registering the case on his file, be set aside. THE petitioner filed complaint before the Chief Judicial Magistrate under S. 200 of the Code of Criminal Procedure, 1973 (to be hereinafter refened to as the new Code) . THE Chief Judicial Magistrate took cognizance of the offence alleged and issued process. On the accused-respondent 1 appearing before the Chief Judicial Magistrate, the Chief Judicial Magistrate decided to try the case summarily by applying the procedure for summary trial as provided by S. 260 of the new Code onwards. On 17-7-1976 the Chief Judicial Magistrate put the substance of the accusation to respondent 1 the accused, and recorded whether the accused pleaded guilty or claimed to be tried. Respondent 1 the accused claimed' to be tried. THE Chief Judicial Magistrate recorded the evidence of four witnesses. At that stage he was promoted as a District Judge and was transferred. THE successor Chief Judicial Magistaate proceeded with the trial. On 29-1-1977 the counsel for the petitioner and the counsel for respondent 1 the accused, filed a memo before Sri. S. N. Malla, Chief Judicial Magistrate, that the evidence already recorded by the predecessor of Sri. S. N. Malla, may be read as evidence in the trial. In effect they consented that Sri. S. N. Malla may treat the evidence recorded by his predecessor as evidence recorded by himself. Sri. S. N. Malla acted on the memo and ultimately convicted and sentenced respondent 1 the accused, and respondent 1 the accused preferred the afore-mentioned criminal appeal. It is under these facts and circumstances that the learned Session- Judge has allowed the appeal, set aside the conviction and sentence and directed de novo trial by the Judicial Magistrate First Class, Karwar, presumably feeling that it would not be in the interest of the parties if the case were to be tried again by Sri. S. N. Malla as Sri. S. N. Malla had already expressed his opinion on merits. THE cardinal principle of law in criminal trial is that it is a right of an accused that his- case should be decided by a Judge who has heard the whole of it. It is so stated by the Supreme Court in the decision in Payare Lal v. THE State of Punjab, AIR. 1962 SC. 690. This principle was being rigorously applied prioi to the introduction of S. 350 in the Code of Criminal Procedure, 1898 (to be hereinafter referred to as the old Code) . S. 326 of the new Code deals with what was intended to be dealt with by S. 350 of the old Codo. S. 326(3) of the new Code reads as follows: