STATE Vs. AMBARAM

JUDGEMENT

(1.) THIS case has been referred to a Bench by a learned Single Judge of this Court. A reference was made by the Additional District Magistrate Dhar, recommending that an order passed by the District Sub-Judge (First Class Magistrate) Sardarpur, dated 11th August 1949 be set aside. It came up before a learned Single Judge of this Court. He was of opinion that the question raised by the reference was one on which there was considerable difference of opinion among various High Courts in India, and accordingly has referred the matter to a Bench. The point of law which came up for consideration before the learned Judge arose thus: Six persons were challaned by the Amzera Police to take their trial for various offences under sections 135, 314 and 444 of the Gwalior Penal Code (corresponding to Sections 148, 452 and 323 of the Indian Penal Code ). The case came up before the District Sub-Judge, Sardarpur, a first class magistrate. After recording some evidence, he framed the charges. After the prosecution evidence was closed and all the accused persons except one had been examined, the case was transferred under an order of the Law Department (Gwalior State) to another Magistrate-viz. , Sub-Divisional Magistrate, Sardarpur. The case was taken up by the Sub-Divisional Magistrate on the 15th of April, 1949, and on that day the accused asked for a de novo trial. The learned Magistrate directed that the prosecution witnesses be examined afresh. In an order recorded on 11th August 1949, he held that under Section 350 of the Code of Criminal Procedure though the accused were entitled to demand that the witnesses or any of them be re-summoned and re-heard, the transfer of the case, from the court of the District Sub-Judge, Sardarpur, to his Court did not have the effect of wiping out the charges that were framed. The accused went in revision against this order before the Additional Sessions Judge, Dhar, who made this reference recommending that the order passed by the Sub-Divisional Magistrate, Sardarpur, be set aside. The question for consideration therefore is, whether on a correct interpretation of Section 350 of the Code of Criminal Procedure if, a warrant case pending before a Magistrate is, as a result of his transfer or for some other reason taken up by another Magistrate, and the accused makes the demand referred to in Proviso (a) to Sub-section (1), is the charge framed by the first Magistrate necessarily wiped out, and must the entire proceeding in the case, be commenced afresh before the second Magistrate? Section 350 (1) reads as follows: Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry 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 re-summon the witnesses and recommence the inquiry or trial: Provided as follows:

(2.) AN examination of Sub-section (1) will show that of the two options given by it to the Magistrate, the first is controlled by two provisos. For the purposes of the present discussion we need consider only proviso

(3.) IT is noteworthy that the language used in the sub-section is different from that used in proviso (a ). While under the sub-section, the Magistrate may if he so chooses, "recommence the inquiry or trial", but if he decides otherwise, the only demand an accused on trial can make is, "that the witnesses or any of them may be re-summoned and re-heard". We cannot assume that the distinction between the. language employed at two places in the same sub-section is devoid of significance.