SHAKIR KHAN Vs. STATE

JUDGEMENT

(1.) Proceedings were going on under Section 110, Cr. P. C., before Sri. C. K. Verma, S. D. M. Maharajganj, district Rae Bareli. Sri C. K. Verma was transferred on 20-3-1951 and became S. D. M., Rao Bareli. He was succeeded by Sri Vishnu Prakash, before whom, the accused claimed that the witnesses should be recalled. Orders wore passed to this effect on 29-3-1951. On 14-4-1951 Sri Vishnu Prakash recorded the statements of Ram Ratan and Adhar. Ho was then transferred to some other district and on 4-7-1951 the case was retransferred to Sri C. K. Verma. Before him the accused applied for resummoning of the witnesses. This application was rejected on 17-7-1951. The accused went in revision but the learned Sessions Judge rejected his application. He has now come up to this Court in revision.

(2.) The matter is governed by Section 350, Criminal P. C., which reads as follows ; "Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an enquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may resummon the witnesses and recommence the enquiry or trial. Provided as follows : (a) in any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them be re-summoned and reheard."

(3.) In the present case the Magistrate did not suo motu decide to recommence the trial. It was the accused who claimed the right to resummon the witnesses. The distinction between the two is to be found laid down in State v. Bansu, A. I. R. 1950 ALL. 669, but it is not material for the purposes of this case. Here the question is whether Sri C. K. Verma can be deemed to be another Magistrate or whether he will be considered to be the Magistrate who has all along been seised of the case and whatever took place before Sri Vishnu Prakash can be ignored.