V GOVINDAN NAIR Vs. KUTTASSERI KUNHI KRISHNAN NAIR

JUDGEMENT

(1.) In this Revision Case an apparently novel point is raised. A complaint was laid for trespass against the accused on the 10 June, 1922, the alleged trespass having occurred on the 3rd June, 1922, before a Magistrate called Mr. Sequeira who heard the prosecution evidence and was then transferred. He was succeeded by Mr. Gangadhara Aiyar who heard the defence evidence and was then transferred. Judgment was delivered on the nth September, 1922, by Mr. T.A. Govinda Aiyar, Second Class Magistrate. The appeal was heard by the Personal Assistant, First Class Magistrate who confirmed the conviction arrived at by Mr. Govinda Aiyar. In this Court the learned Vakil for the accused raised the point that Section 350 of the Code of Criminal Procedure is confined to two Magistrates, so that the judgment by the Third Magistrate, Mr. T.A. Govinda Aiyar is without jurisdiction, and the conviction is therefore illegal. The learned Vakil quoted cases which however do not apply to the question before us. In King Emperor V/s. Sakharam Pandurang (1901) I.L.R. 26 B. 50, it was held that Section 350 applies only to Magistrate. Bardwar Singh or Lall V/s. Khega Ogha (2) followed in Queen Empress V/s. Basappa (1893) I.L.R. 25 C. 870 had reference to Honorary Magistrate of which one was not sitting the whole time during which the case was heard. Section 350 runs as follows: Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an enquiry or trial ceases to exercise jurisdiction therein and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may re-summon the witnesses and recommence the enquiry or trial. Then follows the proviso.

(2.) In the body of the section the words "the Magistrate so succeeding may act on the evidence so recorded by his predecessor" do not seem to restrict that Magistrate to the second. 1 he learned Vakil however relies on proviso (a) which runs: "In any trial the accused may, when the Second Magistrate commences his proceedings demand, etc.," and it is on the use of the words "Second Magistrate" in the proviso that he founds his contention that the second has to be restricted to the single occurrence of one Magistrate succeeding another, On consideration, I think the principle of law clearly is that the Judicial Officer who hears the evidence shall pronounce the judgment. Owing to circumstances in this country this is often impossible to carry out. Hence the necessity for Section 350, Cr.P.C. Now, once the principle is departed from, it appears to me not to matter how often you depart from it. For instance the Second Magistrate is authorised to act on the evidence recorded by the first though he has not seen and heard the witnesses. There seems on principle to be no objection, once this is allowed, to a third Magistrate acting on the evidence recorded by the first. Section 350(a) applies at the time when the succeeding Magistrate begins to exercise jurisdiction, that is, every time another Magistrate takes cognizance of a matter which has been begun or continued by his predecessor. It is thus not incorrect to say that a third Magistrate may be regarded as the second from the point of view of succeeding Magistrate No. 2, in whose case Section 350(a) has already been applied when he (No. 2) commenced to take cognizance of the case. So every time a Magistrate takes cognizance of a case the section is applied and is so to speak finished with before there can be any question of its re-application. Then, when the third Magistrate appears, he is the second with regard to No. 2 and that section is again applied to give him cognizance of a matter continued by his predecessor. It may be noted in this case there is no question of a further Magistrate taking-evidence. That was done by the first two. The third Magistrate merely delivered the judgmnt. In principle, I am of opinion, this makes no difference. The preliminary objection thus fails. It may be stated that the accused did not apply for a de novo trial but applied for a de novo argument which was granted. The point of jurisdiction was not taken on appeal to the lower appellate Court.

(3.) On the merits there is very little to say. The two lower Courts have declared that the property delivered to the complainant did include the property on which the alleged trespass took place. I am not prepared to say sitting in revision that the lower Courts were without jurisdiction in coming to that conclusion.