SAVARIMUTHU PILLAI (DIED) Vs. MUTHU PILLAI

JUDGEMENT

(1.) This case (Cal. Case No. 716 of 1915) on the file of the 2nd Class Magistrate of Dindigul was tried by Mr. D.K. Venkateswara Aiyar who heard all the evidence and adjourned it to 30-11-1915 for judgment. He also wrote and signed a judgment, adding the date (30-11-1915), but did not pronounce it as, when the case was called on 30-11-1915, one of the three accused was absent. The case was therefore adjourned to secure the attendance of this man. On 8-12-1915 all the accused appeared, but by that time Mr. Venkateswara Aiyar had been succeeded by Mr. N. Subramania Aiyar. The accused then demanded a de novo enquiry under S.350 of the Criminal Procedure Code and Mr. Subramania Aiyar apparently feeling doubts as to whether he would in such circumstances be justified in pronouncing his predecessor s judgment acceded to their demand.

(2.) The District Magistrate refers the case under Section 438 of the Criminal Procedure Code on the ground that Mr. Subramania Aiyar was bound to pronounce his predecessor s judgment and recommends that he should be ordered to do so, and that his order for a de novo trial should be set aside.

(3.) It seems to me that the District Magistrate has taken a wrong view of the law, and that the Sub-Magistrate was acting legally in deciding to hold a de novo trial. It was held by a bench of this Court in Sankara Pillai in re (1908) 18 M.L.J. 197 construing Section 367 of the Criminal Procedure Code that a Magistrate did not act illegally in dating signing and pronouncing in open Court a judgment which had been written by his predecessor who had heard all the evidence. But there is nothing to indicate that the learned judges held it to be obligatory on him to do so; the question of how far his discretion would be fettered by the provisions of Section 350 of the Criminal Procedure Code was not considered at all.