RAM KHELAWAN Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge of Allahabad recommending that the order dated 10th December, 1954 passed by the Sub -Divisional Magistrate of Meja be set aside and he be directed to try the case afresh.

(2.) THE facts are not disputed. The proceedings out of which this matter arose were taken under Section 110 of the Code of Criminal Procedure in the Court of the Sub -Divisional Magistrate, Meja. Part of the evidence was recorded by one Magistrate who was then transferred. After him another Magistrate recorded the evidence of some of the witnesses and he too was transferred. Later on Sri U.S. Srivastava was appointed as Sub -Divisional Magistrate of Meja and before him Ram Khelawan claimed a de novo trial. The learned Magistrate by his order dated 10th December, 1954 held that proceedings under Section 110, Code of Criminal Procedure being of the nature of an "inquiry" under the Code of Criminal Procedure do not attract the provisions of Section 350 of the Code, and consequently the applicant could not claim a de novo trial. This view of the Magistrate was certainly wrong. Section 350 of the Code lays down that whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or 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 re -summon the witnesses and recommence the inquiry or trial. The proviso to this section lays down that 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. Whether or not the proviso to Section 350 applies suo vigore to proceedings tinder Chapter VIII of the Code of Criminal Procedure, which also embraces Section 110 of the Code, it must be definitely held that the proviso is applicable by virtue of the provisions of Section 117, Sub -section (2) of the Code. Section 117(2) of the Code of Criminal Procedure says that such inquiry shall be made as nearly as may be practicable, where the order requires security for keeping the peace, in the manner prescribed for conducting trials and recording evidence in summons cases, and, where the order requires security for good behaviour, in the manner prescribed for conducting trials and recording evidence in warrant cases, except that no charge need be framed. Reference in this connection may be made to a decision of this Court in Mahtab Singh v. Emperor, 1937 A.W.R. (H.C.) 88, where the proviso to Section 350 of the Code was made applicable to proceedings under Section 110 of the Code. Reference may also be made to the decision in Govinda v. Emperor, 20 N.L.J. 117 at p. 118 Venkata Chinnayya v. Emperor, I.L.R. 43 Mad 511 (F.B.) and Baijnath Sah v. Emperor : A.I.R. 1925 Oudh 228 at p. 229.