KALI CHARAN DUARY Vs. STATE

JUDGEMENT

(1.) The question that falls to be determined in this revision petition is whether a person proceeded against under the provisions of Section 110, Criminal P. C. has, on transfer of the enquiring Magistrate, the right to have evidence re-heard by the successor Magistrate.

(2.) The petitioner was required under Section 110, Criminal P. C. by the Sub-divisional Magistrate of Contai to show cause why he should not be ordered to execute a bond with sureties for his good behaviour. The proceedings have had a chequered career. They were being dealt with by Mr. A. K. Sen, Sub-divisional Magistrate, before whom a large number of witnesses were examined. Mr. Sen was, however, transferred, and he was succeeded by Mr. S. C. Bhattacharjee who took up the proceedings from the point reached by his predecessor. An application was then made on behalf of the petitioner praying that the witnesses already examined before Mr. Sen might be re-summoned and their evidence re-heard by the successor Magistrate Mr. Bhattacharjee. The prayer for re-hearing the entire evidence was refused, but consideration on the merits of application for re-call of individual witnesses was assured. The petitioner was not satisfied with this concession and moved this Court and obtained the present Rule.

(3.) Mr. Mukherjee appearing in support of the Rule contends that the petitioner could as a matter of right ask for re-call and examination over again before the new incumbent of all witnesses examined before his predecessor. It is argued that according to well-established principles regulating adjudication upon evidence, the court must hear the evidence and then decide. The refusal of the learned Magistrate to re-summon the witnesses and re-hear their evidence would, it is contended, necessarily result in his having to decide on evidence a large part of which he will not have heard himself.