ABDUL SATTAR Vs. STATE

JUDGEMENT

(1.) This is a reference by he Sessions Judge of Kumaon and arises under the following circumstances:

(2.) The magistrate before whom the case had been transferred did not take any proceedings. When the case came up before Sri Ganga Ram he enquired from the accused Abdul Sattar if he wanted a de novo trial. The accused did not claim any de novo trial. Sri Ganga Ram however did not take any further proceedings in the case. Thereafter it was transferred to another magistrate who too did not take any proceedings. After some time the case was retransferred to the court of Sri Ganga Ram. He then again enquired from the accused if he wanted a de novo trial and this time the accused stated that he claimed a de novo trial. Sri Ganga Ram granted this request and resummoned the prosecution witnesses for their evidence. It appears that subsequently he changed his mind and disallowed the request of the accused for a de novo trial. Against this order the accused Abdul Sattar filed a, revision before thi learned Sessions Judge.

(3.) The learned Sessions Judge has referred to the four cases which were cited on behalf of the complainant in support of his contention that the accused was not entitled to a de novo trial when on a previous occasion he had made a statement before this very magistrate that he did not claim a de novo trial. The learned Sessions Judge has observed that the cases relied upon the complainant were inapplicable to the facts of the present case because in those cases the magistrate before whom the cases were subsequently retransferred was the same magistrate, who had started proceedings of the case and had recorded the evidence of the prosecution witnesses and in view of this peculiar circumstance it could not be said that he was another magistrate. As has already been pointed out above in the present case Sri Ganja Ram on the previous evidence did not take any proceedings in the case except making any enquiry from the accused if he claimed a de novo trial or not. He did no record the evidence of any witness. In view of this difference between the cases cited by the learned Counsel for the complainant and the case before me it cannot be said that Sri Ganga Ram is not another magistrate when the case was subsequently retransferred to his file after it had been to another magistrate in the interval. As had been pointed out by the learned Sessions Judge the object of Section 350 Code of Criminal Procedure is that so far as possible a criminal case should be decided by the same magistrate who had heard the witnesses and who had an opportunity of watching their demeanour in the witness box because only in that case he would be able to appreciate the evidence properly. This advantage would be lost if some of the prosecution evidence is recorded by another magistrate who had no opportunity of seeing the witnesses and their demeanour in the witness box. I do not think it at merely because on a previous occasion the accused had not claimed a de novo trial before Sri Ganga Ram he was debarred from claiming it when the case at a later stage was (sic) transferred to him I have not been shown any authority that even if a magistrate had not taken any proceeding in the case and subsequently the case is transferred to some other magistrates who record some of the evidence in the case and then the case is transferred to the same magistrate he will not be deemed to be another magistrate for the purpose of Section 350 Code of Criminal Procedure and the accused will have no right of claiming a de novo trial.