GOPAL PRASAD Vs. STATE

JUDGEMENT

(1.) THIS is an application against an order passed by a Special Magistrate on 11-9-1952, whereby he forwarded the case before him to the Special Judge under the provisions of the Criminal Law Amendment Act, 1952 (Act 46 of 1952). The application is also made against an order of the Special Judge, dated 7-4-1953, whereby he summoned witnesses to attend his Court who had been examined before the Special Magistrate. The Special Judge had decided to try the case independent of the fact that some witnesses had already been examined by the Special Magistrate.

(2.) IT may be stated forthwith that the validity of the Criminal Law Amendment Act, 1952, has. not been questioned by Mr. Baldeva Sahay, who has appeared for the petitioner. Mr. Baldeva Sahay's grievance may be stated to be as two in number. His first grievance was that if Section 10, Criminal Law Amendment Act, be construed properly, the Special Magistrate wrongly forwarded the case before him to the Special Judge for trial. His second grievance was that even if the case was properly before the Special Judge, the Special Judge acted wrongly in deciding to hold a 'de novo' trial; he should have acceded to the request of the accused that if he was going to try the case he should act, upon the evidence already recorded by the Special Magistrate. The majority of the witnesses for the prosecution had been already examined and a large number of documents had been exhibited and the proceedings before the Special Magistrate had taken considerable time. In such circumstances to start the evidence all over again was to inflict further harassment upon the accused, the accused having suffered grievously while the proceedings were before the Special Magistrate.

(3.) IN the case of -- ' Ramchandra Naik v. Emperor', AIR 1947 Pat 428 (B), it has been definitely pointed out that Section 350, Criminal P. C., applies only to Magistrates and not to Sessions Judge, and that a Sessions Judge is not competent to pronounce judgment on evidence recorded by his predecessor, or on evidence partly recorded by his predecessor and partly by himself. If the Special Judge in the present case is a Court of Session, then it seems to me that the Special Judge could not in law act upon evidence already recorded by the Special Magistrate. On the other hand, if it is assumed that the view taken by their Lordships of the Madras High Court is correct, then one must proceed on the assumption that the Special Judge is a Magistrate and that the provisions of Section 350, Criminal P. C., would be applicable. Even so Section 350, Clause (1), does authorise a succeeding Magistrate to re-summon the witnesses and to re-commence the enquiry or trial held by his predecessor. IN the present case the Special Judge decided to re-summon the witnesses and : to hold his trial independent of any evidence recorded by the Special Magistrate. It was within his discretion, if he is to be treated as a Magistrate, to do so, and unless this Court was satisfied that it was a wholly wrong exercise of his jurisdiction, this Court cannot, in my opinion, interfere with his discretion in the exercise of revisional jurisdiction, It seems to me that in the present case where there is such extensive evidence, oral and documentary, and where questions of fact may be extremely complicated for the purpose of decision, it cannot be said that the Special Judge exercised his discretion wrongly in deciding to examine 1 anew all the witnesses who were examined by the Special Magistrate.