SUNDARA KUMAR Vs. K ANANDHAN

JUDGEMENT

(1.) This revision is directed against the order passed by the Judicial Magistrate No.1, Dindigul, dismissing the application, filed by the petitioners under section 326(1) of the Code of Criminal Procedure.

(2.) The facts are these: The respondent filed a private complaint against the petitioners for the offences under Sections/379, 403, 406, 420, 426, 506 (ii) read with 120 B of I.P.C. before the Judicial Magistrate. Nilakottai and the same was taken on file as C.C. No. 549 of 1991. P.W.s 1 to 5 were examined. For other witnesses steps were taken to issue summons. However, since the witnesses did not appear on the date fixed the prosecution was closed and the case was posted for questioning the accused. After questioning the case was posted for judgment. At this stage, the complainant filed a petition having been aggrieved over the non-examination of the other witnesses, before the District Judge, Dindigul, under Section 408 of the Code of Criminal Procedure for transfer of the case to some other Magistrate at Dindigul. Accordingly, after hearing the parties the District Judge Dindigul order the transfer holding that the lower Court has failed to take coercive steps to examine other witnesses. Therefore, after the case having been transferred to the Judicial Magistrate No. I, Dindigul, on the basis of the request of the complainant summons have been issued to the other witnesses namely the doctor and Inspector of Police.

(3.) At this stage a petition under section 326 of the Code of Criminal! Procedure had been filed by the petitioners requesting not to summon those witnesses since it would tantamount to conducting a de nova trial. Learned Magistrate after considering the submissions made by the respective parties and on perusal of the petition and counter dismissed the said application.