RAMASWAMI TEVAR Vs. MSUBBAN

JUDGEMENT

(1.) This Criminal Revision Petition has been filed by the complainant against the order of the Sessions Judge of Tinnevelly in Crl. Revn. Petn. 46 of 1929. Against an order of discharge passed by the Special Third Class Magistrate of Tinnevelly, in C.C. 286 of 1929 the Complainant filed Cr. Revn. Petn. 27 of 1929 to the Sessions Judge, who directed a further inquiry into the case, for the purpose of finding out on the evidence already adduced, whether an offence under Section 424, I.P.C., can be brought home to the accused. In ordering a further inquiry for that purpose the learned Sessions Judge specifically directed that it should be made by the Sub- Magistrate of Nanguneri, as he was the person who tried the case originally, when he was the Special Third Class Magistrate, Tinnevelly. Such an order is not quite in consonance with Section 436, of the Code, which does not authorize a Sessions Judge to direct further inquiry by a particular Magistrate subordinate to the District Magistrate. What the Sessions Judge can do is to direct the District Magistrate by himself, or by any of the Magistrates subordinate to him, to make the further inquiry, thus leaving the District Magistrate to exercise a discretion as to the selection of any Magistrate subordinate to him: vide Chundichurn Bhuttacharjea v. Hem Chundar Bannerjee [1884] 10 Cal. 207.

(2.) Be this as it may, a situation not probably contemplated by the Sessions Judge when ordering further inquiry in that manner, seems to have arisen. This case has since been transferred by the District Magistrate to Second Class Magistrate, Tinnevelly, for disposal. That Magistrate decided to proceed with the examination of the witnesses afresh, for some reasons. That order has been set aside in revision by the learned Sessions Judge, who says, that, in view of his former order, it is not open to the Sub-Magistrate to take evidence afresh, because the evidence already on record was taken by another Magistrate, who ceased to have jurisdiction over the case. Against this order the present revision petition has been filed in the High Court.

(3.) The main point for consideration is, whether the Second Class Magistrate of Tinnevelly can now resummon the witnesses and re-commence the inquiry, in the exercise of the discretion vested in him under Section 350 (1) Criminal P.C. By virtue of Clause (3) of this section, when a case is transferred under the provisions of this Code, from one Magistrate to another, the latter can exercise the powers mentioned in Clause (1). That being so, the order of the Second Class Magistrate, Tinnevelly, in exercise of the statutory power vested in him, cannot be interfered with by the learned Sessions Judge. Moreover, when further inquiry was ordered to be made in the case, on the evidence already taken the Sessions Judge directed the same to be made, by the very Magistrate who had recorded the evidence. In that case, Section 350 would have no application. Now that another Magistrate has come to have jurisdiction over this case, (which was not contemplated in the original order of the Sessions Judge, directing further inquiry) the restriction placed in that order can no longer hold good nor can the operation of Section 350 (1) of the Code be checked. The order of the learned Sessions Judge is set aside, and the order of the Second Class-Magistrate, Tinnevelly is confirmed though not for the reasons mentioned in his order.