SARKAR Vs. MADHO RAM

JUDGEMENT

(1.) THIS is a reference by learned Sessions Judge, Nagaur. The accused Madho Ram, was challaned by Police, Khaki, to the Court of Lala Jaswant Narain, First Class Magistrates, Nagaur, on a charge under Section 302/109, M. P. C. The prosecution examined 13 witnesses. The accused stated that he had been falsely impleaded, pleaded alibi, and examined three witnesses in support of his version. The learned Magistrate was of opinion that no case had been made out and submitted the record to the learned Sessions Judge with a recommendation for discharge of the accused as required under the then Marwar Oriminal Procedure Code. The learned Sessions Judge, however, came to the conclusion that the evidence was sufficient for the framing of a, charge under Section 302/109, M. P. C. and on 10th February 49 directed the learned Magistrate to commit the accused to the Court of Session for trial. By the time the case was received by the lower Court, there was a change in the personnel, and the case was laid before Mr. Moolsingh, Sub-Divisional Magistrate. The accused prayed for a de novo inquiry under proviso (a), Section 350, Sub-section (1), Criminal P. C. Mr. Moolsingh, Sub-Divisional Magistrate, allowed the application, whereupon the Public Prosecutor filed a revision to the Court of Session. The learned Sessions Judge was of opinion that the proceedings before the Magistrate were only in the nature of an inquiry, and therefore, the proviso (a) to Sub-section (1) of Section 350, Criminal P. C. , which only applied to trials, was not applicable. He was also of opinion that after an order of commitment had been made by the Court of Session under Section 437, Criminal P. C. , the Magistrate was not authorised to record the evidence over again, but he should have framed a charge, explained it to the accused, and enquired of him to give a list of the witnesses and after examining them, if he thought fit, he should hare finally made a formal order of commitment as directed. The learned Sessions Judge has made a reference for setting aside the order of the learned Sub-Divisional Magistrate directing re-inquiry, and for further directing the Magistrate to proceed according to the observation made by the learned Sessions Judge.

(2.) THE case originally came up before a single Judge, who directed it to be laid before a Division Bench, as the opinion of the Indian High Courts was decided on the question whether the word "trial" referred to in Section 350 (1) (a) included proceedings before the framing of the charge.

(3.) IN view of the above, the Magistrate was not bound to re-call the witnesses when he himself did not think it necessary to do so in his own discretion.