ITTUNDAN Vs. STATE

JUDGEMENT

(1.) THE procedure followed by the first court in the trial of this case is attacked on two grounds namely (1) that the accused was denied the advantage of a de novo trial as contemplated by S. 350 of the Code of criminal Procedure and (2) that the requirements of S. 342 of the same Code were not complied with in the matter of questioning the accused on the evidence adduced by the prosecution, before calling upon the accused to enter upon their evidence. A perusal of the records in the case show that both these objections were well founded and have to prevail. THE whole of the prosecution evidence had been recorded by 17. 7. 1951. Even the re-cross-examination of the prosecution witnesses had been over by that date and the case was adjourned to 31. 7. 1951 for reading the statement of the accused and for hearing. THE magistrate who had recorded such evidence left charge of the court on 30. 7. 1951 on being transferred to a different station and his successor took charge on the same date. THE latter did nothing in the case on 31. 7. 1951 but simply adjourned the case to 21. 8. 1951. On 21. 8. 1951 when the case was attempted to be proceeded with accused 1 to 4 applied that there should be a de novo trial because the Magistrate in charge of the court was new to the case. That petition was allowed and the prosecution witnesses were ordered to be re-summoned. But in the next adjournment date the prosecution objected to such a trial. THE Magistrate accepted the objection and cancelled his prior order allowing de novo trial. He recorded the statement of the accused, heard the arguments and proceeded to judgment. THE result has been that the accused were convicted by a Magistrate who took no part at all in the recording of the prosecution evidence which formed the basis of the finding that the accused have been proved to be guilty of the offence charged against them. THE magistrate's appreciation of the evidence was almost similar to the appreciation of which evidence by an appellate court. Such a procedure on the part of the trial Magistrate is not warranted by the Code of Criminal procedure. Under the first proviso to S. 350, the accused has a right to demand that any or all the prosecution witnesses should be recalled and examined afresh when the Magistrate who had examined them earlier is succeeded by a new magistrate. In the present case the right had been exercised by accused 1 to 4 and the Magistrate had passed an order allowing their request. THE Magistrate clearly erred and acted without jurisdiction in reviewing and canceling that order on the objection of the prosecution. THE procedure sanctioned by S. 350 cannot be allowed to be controlled by the will and fancy of the prosecution. That section confers a right on the accused and when they exercise the option available to them and demands a resummoning of the prosecution witnesses, that request has to be granted unless there are very weighty reasons justifying the adoption of a different course. THE trial court's view that on account of the failure of the accused to make the request to resummon the witnesses on 31. 7. 1951, they forfeited the right available to them under S. 350 is unsupportable. As per the first proviso to that section the accused could exercise the right when the new Magistrate commences his proceedings in the case. On 31. 7. 1951 the Magistrate had suo moto adjourned the case to 21. 8. 1951. It was only on 21. 8. 1951 that he really attempted to commence the proceedings in the case and at that the accused had made their request that the prosecution witnesses should be resummoned and examined again. That request was allowed and the proper procedure would have been to carry out that order. THE cancellation of that order and the adoption of the different procedure can be accepted as legal and proper. THE result is that the trial has to be characterised as illegal. For this reason alone a fresh trial has to be ordered.

(2.) S. 342 of the Code contains a mandate that at the close of the prosecution evidence, the Magistrate shall question the accused generally on such evidence before calling upon the accused to enter upon his defence. No such question was put to the accused in this case. They were simply asked if they have any evidence to be adduced. Even though the failure to question them cannot be said to have prejudiced them in view of the fact that the case is one of simple assault the fact is that the mandatory direction in s. 342 has not been complied with. This also necessitates the ordering of a fresh trial.