EMPEROR Vs. RAMCHANDRA NARHAR ABHYANKAR

JUDGEMENT

(1.) This is a revision application against an order made by the Additional Sessions Judge of Poona, The question, which arises, is one which has led to some difference of opinion amongst the High Courts in India.

(2.) The facts are that the accused has been charged with criminal misappropriation, and the case was inquired into by a Magistrate, who heard one witness, an accountant, who gave evidence at considerable length. Then the case was transferred to another Magistrate who continued the inquiry. The accused desires the accountant witness to be recalled, and his evidence taken de novo before the new Magistrate, The learned Magistrate has refused his application, and the refusal was upheld by the learned Additional Sessions Judge.

(3.) The question turns entirely on the construction of Section 350 of the Criminal Procedure Code, the question being when, in a warrant case, a trial commences. Does it commence when the Magistrate starts the inquiry, or does it only commence after the charge is framed as the lower Courts think ? Section 350 provides that whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a 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 resummon the witnesses and recommence the inquiry or trial. Then there is a proviso that in any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them, be re-summoned and re-heard. It will be noticed, therefore, that the discretion of the Magistrate can be exercised in an inquiry or a trial, but the right of the accused to demand the re-summoning of witnesses is confined to a trial. "Inquiry" is defined in Section 4(1)(k) of the Code as including every inquiry other than a trial conducted under the Code by a Magistrate or Court.