EMPEROR Vs. J. B. SANE

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. The facts leading to this reference under Section 438, Criminal P.C., are very clearly stated by the learned Sessions Judge, Akola, in these words: Criminal Case No. 50 of 1927 of the First Class Magistrate, Basim, was owing to a defect in procedure, remanded by the Judicial Commissioner's Court. It is now proceeding as case No. 36 of 1929 in the Court of the Sub-Divisional Magistrate, Basin. Owing to transfer of the Magistrate who first tried the case, Section 350, Criminal P.C., applied. Pour accused said that they wanted all the prosecution witnesses and all the Court witnesses to be resummoned and reheard, while the remaining 8 said that there should be a de novo trial from the beginning (sic) See applications dated 14th March 1929. In the original case there were witnesses for the prosecution, for defence and for Court. On 19th August 1929 when called upon to enter upon their defence, all the accused prayed that the defence evidence recorded in the previous case and the evidence of Court witnesses 2, 3, 4 and 5 should be taken as evidence in the present case, and that the original defence witnesses should not be reheard, but that they wanted to give some additional defence evidence. The Magistrate rejected this application.

(2.) ONE more important fact has also to be noted. In para. 21 of this Court's order in Criminal Revision No. 29-B of 1928, Kinkhede, A.J.C., had definitely laid down that: all the evidence for both parties which has gone on record between 20th October 1927 and 14th November 1927 and also thereafter must be treated as expunged therefrom and the trial resumed from the stage from which the illegality crept in, except so far as the accused may dispense with such expunction.

(3.) NONE of the cases cited before the Sessions Judge or in this Court cover the point actually requiring decision in the present case. It is, however, clear that the discretion given to a Magistrate by Section 350(1), Criminal P.C., to act or not to act upon the evidence recorded by his predecessor is not absolute but is controlled by proviso. 1 to that section and it is solely left to the accused whether to claim the right to have the witnesses already examined by the previous Magistrate recalled and reexamined by the succeeding Magistrate. But it is equally clear from the language of the proviso that this right has to be exercised by the accused only at the time "when the second Magistrate commences his proceedings."