GOVINDA PILLAI Vs. STATE

JUDGEMENT

(1.) THE accused in C. C. No. 41 of 1951 of the sub-Divisional Magistrate's Court of Chengannoor is the revision petitioner. He was tried for an offence under S. 326 of the Indian Penal Code for causing grievous hurt to Pw. 1. He was at first convicted of the offence and sentenced to undergo rigorous imprisonment for 18 months and to pay a fine of Rs. 50/ -. In appeal filed by him before the Sessions Court of Mavelikara the conviction and sentence were set aside on the ground of certain irregularities in the trial and the case was sent back for retrial. In the meanwhile the Magistrate who tried the case was transferred. THE accused filed a petition on 11. 3. 1953 for resummoning and re-examining the prosecution witnesses. Although no order appears to have been passed on the petition the new Magistrate re-summoned the witnesses. THEy were, however, not examined in chief but were only further cross-examined. THE learned Magistrate again convicted the accused and sentenced him to undergo rigorous imprisonment for 18 months and to pay a fine of Rs. 50/ -. In appeal filed before the Sessions Court of Mavelikara the conviction was upheld but the sentence was reduced to rigorous imprisonment for six months and to pay a fine of Rs. 25/ -.

(2.) THE main ground urged in the revision petition is that the learned Magistrate went wrong in not examining in chief the prosecution witnesses who were re-summoned and in acting on the evidence given by the witnesses before the previous Magistrate.

(3.) IT has been held in several cases that the word 're-heard' in proviso (a) means that the whole evidence of the witnesses should be recorded again, i. e. , they should be examined in chief, cross-examined and re-examined. In Kazi v. King Emperor ( (47) Criminal Law Journal 240), a decision of the Nagpur High Court, Benson, J. observed: "'re-hearing' means that the witnesses are to be heard again and as their hearing on the first occasion consisted of the usual examination, i. e. , examination in chief, cross-examination and re-examination, it is clear that the second examination must be equally complete. Further cross-examination or a reading of or a summary of the previous evidence will not do. There must be a fresh start to enable the succeeding Magistrate to hear the connected narrative of the witnesses in examination in chief and their replies when under the fire of cross-examination and to observe their demeanour throughout". To the same effect is the decision of that Court in purushottam Rao v. Emperor (AIR 1938 Nagpur 493 ). IT was held in that case that the failure to examine in chief the witnesses who were re-summoned was an illegality which vitiated the trial and that the accused was not estopped from raising the plea of illegality of the trial by reason of his acquiescence in the procedure adopted by the Magistrate. The same view was taken by the calcutta High Court in Sobh Nath Singh v. Emperor (12 Calcutta W. N. 138 ). In that case the Calcutta High Court held that even if no objection was taken by the accused to the course adopted by the Magistrate, i. e. , merely allowing the witnesses to be cross-examined further, the trial would be vitiated. In narayana Reddy v. Bojanna (AIR 1925 Madras 1280) Krishnan, J. observed: "the object of granting a de novo trial is to enable the Magistrate who hears the case to see the way in which the witnesses give evidence before him, mark their demeanour, and thereby to be in a position to judge to their credibility. That object is lost if the witnesses are not examined again but are only allowed to be cross-examined by the accused".