RAM DASS Vs. EMPEROR

JUDGEMENT

(1.) The case before us is a reference by the learned Sessions Judge of Ghazipore, recommending that the conviction of one Ram Das on a charge under Section 323 of the Indian Penal Code and the sentence of rigorous imprisonment for one month passed on him be set aside, on the ground that the trial in the Magistrate s Court was vitiated by illegality. It appears that the complaint filed against Ram Das was referred for trial to the Court of an Honorary Magistrate exercising the powers of a Magistrate of the Second Class. This Court recorded the whole of the evidence for the prosecution and a portion of the evidence for the defence. When it had reached this stage, Ram Das applied to the District Magistrate to have the case transferred to some other Court. He gave an undertaking that, in the event of such transfer, he would not ask the Court to which the transfer was made to re- hear the entire evidence de novo, but would be satisfied if that Court proceeded to call and examine the remainder of the defence witnesses and pronounce judgment on the materials then before it. The case was then transferred by the District Magistrate to the Court of a stipendiary Magistrate of the First Class. Ram Das made no at-tempt to evade the undertaking which he had given to the District Magistrate, that is to say, he did not demand that the witnesses, or any of them, who had been already examined by the original trial Court should be re- summoned and re-heard. The First Class Magistrate accordingly heard and examined the remainder of the defence witnesses named on behalf of Ram Das, convicted him on the charge as framed under Section 323 of the Indian Penal Code and sentenced him to rigorous imprisonment for one month. The learned Sessions Judge has referred the case to this Court on the ground that the provisions of Section 350 of the Criminal Procedure Code do not apply to cases which are transferred from one Court to another, and that the First Class Magistrate on receiving this case for trial was bound to commence the trial de novo by the examination of all the prosecution witnesses. There is authority for this proposition in one single case of this Court, Queen-Empress v. Angnu A.W.N. (1889) 130. That case was decided by a single Judge upon a reference by a Sessions Judge. The case was not argued and the judgment is of the briefest. We can only take it that in the opinion of the learned Judge of this Court who disposed of that reference the provisions of Section 350 of the Criminal Procedure Code were not intended to apply to oases of transfer. There was a suggestion in the referring order in that case that the accused had been prejudiced by the course adopted. Apparently there had been some complaint on his part against the manner in which the evidence had been recorded by the original trial Court. We do not know how far the learned Judge of this Court was affected by this consideration in passing the order which he did. The learned Sessions Judge has referred to another decision of this Court, Queen-Empress v. Bashir Khan 14 A. 346 : A.W.N. (1892) 19 : 7 Ind. Dec. (N.S.) 589. He is entitled to rely upon the opinion expressed by the learned Judge who disposed of this case by way of obiter dictum; but the actual point for decision was different. On the facts of that case, even assuming that the provisions of Section 350, Criminal Procedure Code, did apply, those provisions had been contravened and the order quashing the proceedings was obviously right on this ground alone. In a recent case; Emperor v. Nanhua 23 Ind. Cas. 722 : 12 A.L.J. 467 : 36 A. 315 : 15 Cr.L.J. 354 one of us has committed himself to a contrary view. Some stress was laid in deciding that case on the fact that the proceedings transferred from one Court to another were only an enquiry preliminary to commitment, and no doubt the question of possible prejudice to the accused person would require to be more carefully considered in the case of the transfer of a trial than in the case of an enquiry preliminary to commitment. At the same time it is quite clear that either the provisions of Section 3 0, Criminal Procedure Code, do not apply at all to cases of transfer, or they apply to trials just as much as to preliminary enquiries. This decision is based on certain recent pronouncements of the Calcutta and Madras High Courts. It is sufficient to refer to the oases of Mohesh Chandra Saha v. Emperor 35 C. 457 : 12 C.W.N. 416 : 7 C.L.J. 488 : 7 Cr.L.J. 220; Kudrutullah v. Emperor 14 Ind. Cas. 314 : 39 C. 781 : 13 Cr.L.J. 218 and Palaniandy Gounden v. Emperor 1 Ind. Cas. 54 : 32 M. 218 : 5 M.L.T. 218 : 9 Cr.L.J. 146. The last of these oases was also a case of an enquiry preliminary to commitment; but in this case, as well as in the two Calcutta cases, the principle was most clearly affirmed that Section 350 of the Criminal Procedure Code applied as much to cases in which a Magistrate ceases to exercise jurisdiction, so far as the particular case in question is concerned, by reason of its transfer to another Court, as to cases in which the Magistrate ceases to exercise jurisdiction by reason of his own death or transfer to another post. It has been shown to us that the two Calcutta oases are not entirely consistent with certain prior decisions of that Court, but they do represent the latest views of that Court on the question for determination before us. On the wording of the section itself it seems impossible to deny that the words used are wide enough to cover cases of transfer, as well as those oases in which the Court remains the same, but the person of the presiding officer is changed. As the learned Judges of the Madras High Court have pointed out, the words ceases to exercise jurisdiction therein" must be given their appropriate meaning; and certainly a Magistrate who takes cognisance of a case on the passing of an order of transfer by a competent Court has jurisdiction "therein", that is to say, in the said case, by reason of the order of transfer.

(2.) On the ground of public convenience there seems to be no good reason why the words of the section should not receive a liberal interpretation, provided such interpretation is not inconsistent with the words themselves.

(3.) It seems to us that there is no good reason why the practice of this Court should not be brought into confirmity and Madras, and we are prepared to hold that the provisions of Section 350, Criminal Procedure Code, do apply under the circumstances of the case now before us.