IN RE: ARULAY Vs. STATE

JUDGEMENT

(1.) The petitioner seeks to revise an order of acquittal in C.C. No. 60 of 1925 on the file of the Court of the Second Class Magistrate of Sivaganga. After the case was charged, there was a transfer of Magistrates, and in exercise of his privilege under Section 350, Criminal P.C., the accused asked that the prosecution witnesses might be re-summoned and reheard. When they appeared, he said he would be content to cross-examine them. The question raised is whether his original application had the effect, as it were, of cancelling the evidence recorded by the Magistrate s predecessor, so that on the adjourned date of hearing the only course was to examine the witnesses afresh, or whether on the contrary the accused could change his mind and leave the Court free to exercise its statutory option and act upon the evidence recorded by its predecessor. The petitioner relies upon the rulings in Sobh Nath Singh v. Emperor [1907] 12 C.W.N. 138 in which it was held, no doubt, that the accused has no right to change his mind.

(2.) My difficulty in following these rulings is that they seem to assume that the ordinary procedure under the Code when the Magistrate is transferred in the course of the hearing, is a re-trial, and if there is no re-trial, the accused must beheld to be gravely prejudiced.

(3.) Deputy Legal Remembrancer v. Upendra Kumar Ghose [1907] 12 C.W.N. 140. The short answer to these observations is that the law requires no such thing, and if an accused is materially prejudiced by the Magistrate passing judgment on his predecessor s record, it is a prejudice by the Statute. It would be a very different case if the statute forbade the Magistrate to act upon this record and the accused was induced to plead that he would allow the recorded evidence to go in spite of the statute. That was the point in In re K.K. Ummar Hajee A.I.R. 1923 Mad. 32., which has no reference to Section 350.