ARJUN PADHI Vs. STATE

JUDGEMENT

(1.) THESE are two petitions filed under Section 561 -A of the Criminal Procedure Code by one Arjun Padhi who stands charged along with certain others for an offence alleged to have been committed under Sections 406/34 and 409/34, I. P. C. The case against the petitioner was started on First Information (No. 54 dated 6 -5 -48) and the charge sheet was filed against him and two others on 12 -4 -49. The trial was taken up on 7 -6 -49 and charge was framed on 22 -12 -49 by the Subdivisional Magistrate of Boudh. After framing of charge witnesses for the prosecution were cross -examined and the case was posted to 11 -1 -51 lor adducing defence evidence. On 26 -12 -50 the record almirah of the Court was burnt and all the records relating to this case were destroyed. On the next day the house of the petitioner was searched and certified copies of the depositions of the witnesses, F. I. R. charge -sheet and some other papers were recovered and seized by the police. On 27 -4 -51 the accused filed a petition praying that the case should be taken up from the stage which had been reached before the records had been destroyed and also praying that the certified copies seized from his house may be returned. The magistrate rejected both the prayers and directed that a de novo trial should be started. The prosecution witnesses were examined but the case was not taken up due to the absence of the Circle Inspector and the Public Prosecutor until 28 -6 -51. The petitioner has thereafter moved this Court on the 10th July 1951 praying that the proceedings may be quashed and the order of the Magistrate directing a de novo trial should be set aside.

(2.) THE petitioners' contention is that the Magistrate who took cognizance is still in seizin of the case and that the trial has not been interrupted by the transfer of the Magistrate or succession of one magistrate by another. Section 350 of the Criminal Procedure Code does not apply to a case like the present where the records of the Court have been lost. In terms, that section applies to a case where one Magistrate has ceased to exercise jurisdiction after having recorded evidence in a case and is succeeded by another Magistrate who exercises such jurisdiction. The succeeding Magistrate may act on the evidence recorded by his predecessor and proceed with the trial, or he may re -examine the witnesses and re -commence the inquiry or trial. Section 350, therefore, cannot be invoked to justify the order of the Magistrate directing a de novo trial. The question, then, is - - does the trial automatically come to an end when the Magistrate makes such a direction? If it does, as is contended by the petitioner, the charge already framed against him must be wiped put by an order of the Court quashing the proceedings on the ground of loss of records. If this were the true position in law loss or destruction of records, in courts, would not be infrequent and would encourage unscrupulous persons to see to their destruction. I have not been shown any authority that the High Court can, in such circumstances, quash the proceedings and record an order of acquittal in favour of the accused.

(3.) ON a review of the authorities, therefore, it is clear to me that the trying magistrate has got the power to reconstruct the records by substituting secondary evidence. I would not uphold his order directing that there should be a de novo trial as, on the facts stated, the case has already had a prolonged career. It has been pending from the year 1948 and more than three years have elapsed since information was laid against the petitioner. The evidence recorded, certified copy of which is available, is voluminous; the trial itself took more than a year before the charge was framed. In these circumstances it appears to me that it would be an abuse of the powers of the Court to subject the petitioner to further harassment by directing a new trial and recording of evidence afresh. I would, accordingly, direct that the trying magistrate should substitute certified copies of the despositions already made, and such other records as are available, and act upon that evidence in place of the original.