RAMASWAMI NAICKER Vs. RANGASWAMI NAICKER AND ANR.

JUDGEMENT

(1.) THIS case was first tried by the Sub -Magistrate of Sattur, who after examining the witnesses for the prosecution framed a charge against accused 1 and 2 under Sections 324 and 323 Indian Penal Code respectively on the 3rd May, 1945. Subsequently the Sub -Divisional Magistrate of Sivakasi transferred the case to the file of the Sub -Magistrate of Virudhunagar. The case was taken on file on the 20th June, 1945, and summons issued to the accused and notice to the complainant. On 27th July, 1945, the accused applied to the Magistrate for a de novo trial and the application was granted and all the prosecution witnesses were resumnoned and reheard. The case stood posted on the 18th September, 1945, for the examination of the medical witness who was the only remaining prosecution witness. On that day the complainant was absent when called. The Sub -Magistrate of Virudhunagar discharged the accused and passed the following order:

(2.) THE question for decision is whether in a warrant case after a charge has been framed a Court to whom the case was transferred after the framing of the charge can discharge an accused person when the complainant is not present. The contention of the respondent is that since there has been a de novo trial granted in this case by the sub -Magistrate of Virudhunagar the charge framed by the Sub -Magistrate of Sattur should be deemed to have been wiped out altogether by reason of Section 350, Criminal Procedure Code and that so long as there is no charge subsisting it is open to the Court under Section 259, Criminal Procedure Code to discharge the accused if the complainant is absent. The view propounded by the respondents' advocate that the charge should be deemed to have been wiped out when a de novo trial is granted cannot be upheld. A Bench of this Court, held in Sriramulu v. : (1914)27MLJ589 , on similar facts that where a Magistrate framed charges against an accused person and was succeeded by another Magistrate who recommenced the case under Section 350, Criminal Procedure Code the succeeding Magistrate cannot ignore the charge framed by his predecessor and his position is practically the same as that of his predecessor would have been if, after framing a charge, he had heard further cross -examination of the prosecution witnesses under Section 256(1) and on a consideration thereof became satisfied that the charge was not well founded. The reason of the rule was set out thus in the judgment of Ayling, J.

(3.) THE learned advocate for the respondent has drawn my attention to two other cases in Sardar Khan Sahib v. : AIR1925Mad174 and Ramalingam Pillai, In re, (1934) 67 M.L.J. 293:, I.L.R. 57 Mad.1019. In neither of these two cases which were decisions of single Judges was the Bench decision in Sreeramulu v. : (1914)27MLJ589 , referred to and although it is held that on the granting of a de novo trial prior proceedings are wiped out, there is no reference to the question that is at issue here whether the resummoning and re -hearing of witnesses under proviso (a) to Section 350(1) of the Criminal Procedure Code at the instance of the accused has the effect of wiping out the charge already framed against the accused. In this state of the decisions, I feel bound to give effect to the principle involved in the Bench decision.