EMPEROR Vs. RAMCHANDRA NARHAR ABHYANKAR

JUDGEMENT

(1.) THIS is a revision application against an order made by the Additional Sessions Judge of Poona, The question, which arises, is one which has led to some difference of opinion amongst the High Courts in India.

(2.) THE facts are that the accused has been charged with criminal misappropriation, and the case was inquired into by a Magistrate, who heard one witness, an accountant, who gave evidence at considerable length. THEn the case was transferred to another Magistrate who continued the inquiry. THE accused desires the accountant witness to be recalled, and his evidence taken de novo before the new Magistrate, THE learned Magistrate has refused his application, and the refusal was upheld by the learned Additional Sessions Judge.

(3.) THE view, which the Madras High Court has taken, in Ramanathan Chettiar v. King-Emperor (1922) I.L.R. 46 Mad. 719, is that a trial only commences when the Magistrate frames a charge, and the accused claims to be tried under Section 256, and there is no doubt a good deal to be said for that view. On the other hand, the Lahore High Court in Sahib Din v. THE Crown (1922) I.L.R. 3 Lah. 115 and the Court of the Judicial Commissioner in Sind in Labhsing v. Emperor [1934] A.I.R. Sind 106 have taken the opposite view. We were told by counsel that the matter has not been considered by this Court. But in point of fact there is a decision of this Court directly in point in Dagdu v. Punja Vedu [1937] Bom. 211 : s.c. (1936) 38 Bom. L.R. 1189. THE question there arose on an application to set aside an order of a Magistrate directing the complainant to pay compensation under Section 250 of the Criminal Procedure Code. THE first Magistrate, who had inquired into the case, had framed a charge. THE second Magistrate inquired into the case de novo, discharged the accused, and required the complainant to pay compensation, and the argument was that when the second Magistrate took charge, all he could do was to try the case, the charge having been framed, and it was not competent for him to re-start the inquiry which had been finished by his predecessor. But this Court rejected that view, and held that the trial commenced when the Magistrate took his seat in Court with the accused in the dock in front of him. Whatever view we might have taken had the case been free from authority, I think we ought to follow Dagdu v. Punja Vedu (supra.).