P L D 1962 Dacca 7 (PLP)

" (a) In any trial the accused may, when the second Magis trate commences his proceedings, demand that the witnesses or any of them be re‑summoned and re‑heard." Mr. Mofakhar appearing on behalf of the complainant opposite- party has, however, contended that the learned Magistrate has proceeded with the trial in accordance with the order of the learned Additional Sessions Judge which he was bound to follow and that the said learned Judge was competent to pass the order as he has done, i.e., to direct that the re‑trial should continue from a specified, i.e., particular, stage. His argument, in other words, is that no illegality or impropriety has been committed by either so that the trial as much as the conviction is above reproach on this score. It is a well‑settled basic principle of criminal jur4spru dence that the only proper persons who can decide a case are those who have conducted the proceeding from start to finish and heard the evidence and argument, i.e., that "the judgment must be delivered by the Judge who has heard the evidence". The Criminal Procedure Code has, however, provided an exception to this and that is embodied in section 350, the relevant portion of ' which has already been quoted above. That section in its terms applies only where a Magistrate having heard or recorded the evidence either in whole or in part, ceases to exercise jurisdiction therein and is succeeded by any other Magistrate who has and exercises such jurisdiction and that it is then that the new Magis trate may act on the evidence so recorded by his predecessor. Obviously the case before me is not one like that. There is, how ever, yet another category of cases in which, too, the provisions of subsection (1) of section 350 are applicable, such cases are those that are contemplated by subsection (3) of section 350 of the Code of Criminal Procedure. That subsection provides: - "When a case is transferred under the provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein and to be succeeded by the latter within the meaning of subsection (1)." It appears to be unambiguously clear that a case in order to come within the ambit of this subsection must be one that "is transfer red under the provisions of this Code" I.e. the Code of Criminal Procedure. The only provisions in the said Code dealing with or governing transfer of cases are to be found in sections 526‑528 thereof. Apparently the present case, which is one of re‑trial and not of transfer, does not come under any of the afore‑mentioned provisions of the said Code. In this connection, reference may be made to the case of Sasadhar Sarkar v. The State (56 C W N 485), which has been relied upon by the learned Advocate for the accused‑petition ers and which also appears to be on all fours with the facts and circumstances of the present case. That was a case in which the accused‑petitioner was tried under section 408 of the Penal Code and convicted and sentenced. On appeal against the order of conviction and sentence, the Additional Sessions Judge held that there was no proper charge and the case was sent back for a fresh trial by some other Magistrate with a direction that the case be re‑tried after framing a proper charge on the prosecution evidence that was already on the record and allowing the accused an oppor tunity to cross‑examine the witnesses and adduce evidence, if so desired. Thereafter another Magistrate tried the case from the point when the charge had to be framed and eventually convicted and sentenced the petitioner. In these circumstances, it was held: - " (1) Section 350 of the Code of Criminal Procedure could not apply to such a case. Section 350 applies to a case where the previous Magistrate after having heard and recorded the whole or any part of the evidence ceases to exercise jurisdiction therein and is succeeded by another Magistrate who has and who exer cises such jurisdiction and it is then that the now Magistrate may act on the evidence so recorded by his predecessor. But in the present case the order of the previous Additional Sessions Judge directed the new Magistrate to proceed with the trial on the evidence already in the record irrespective of the fact as to whether or not the previous Magistrate could continue the said trial. (2) The present case does not come within the purview of section 350 (3) of the Criminal Procedure Code. The transfer contemplated under section 350 (3) is transfer in a pend ing trial and the subsection does not apply to a case of re‑trial." That appears to be the view taken by several other High Courts including the High Court of Lahore as well. It is thus clear that section 350 of the Code of Criminal Procedure has no application to the present case. Again, the order of the learned Additional Sessions Judge in question cannot, I am afraid, be justified even on the assumption that section 350 applies thereto. This point was actually considered in the above‑mentioned case of Sasadhar Sarkar v. The State and their Lordships (Harris C. J. and S. R. Das Gupta, J.) held "Even assuming that section 350 of the Code of Criminal Procedure applies to the present case, the order of the Addi tional Sessions Judge bad taken away the right of the accused under provision (a) to section 350 (1) of the Code of Criminal Procedure to demand that the witnesses or any of them be resum moned and re‑heard. The Magistrate according to the direction of the Additional Sessions Judge was bound to proceed to trial after framing a charge on the prosecution evidence already on the record. Accordingly, there was no room for the application of provision (a) to section 350 (1) of the Code of Criminal Pro cedure. That being so, the said order of the Additional Sessions Judge was not in accordance with law." Similarly, it has been held in the case of Altaf Hussain v. Crown (2 P C R 277). "When a Magistrate takes over the charges of a case, he should inquire from the accused whether he wants a de novo trial or not though in law the Magistrate is not bound to put this question to the accused." The only other conceivable objection may be the finality of the order of the learned Additional Sessions Judge in question, which was not challenged in appeal. An objection might, therefore, be taken that as the said order was not reversed in due course of law, it has to be regarded as final between the parties and cannot be questioned now. In my opinion, however such an argument can have no force or substance at all. To quote again from the afore mentioned judgment of Sasadhar Sarkar v. The State. "Lastly, it has been urged before us that no appeal having been preferred against the said order of the Additional Sessions Judge, the matter is concluded by the said order, and no objec tion can now be raised as to the validity of the trial which had taken place pursuant to the said order. I am unable to accept that contention. The fact that there spas no appeal from the order of the Additional Sessions Judge does not in my opinion, alter the position as to the validity of the trial. If the trial has been vitiated and is bad, because of the reasons mentioned, then a conviction made in the said trial is also bad and should be set aside. It does not matter even if the order in accordance with which the trial has taken place has not been appealed from. That would not make the trial a good trial." In the circumstances, the re‑trial held in the present instance cannot, in my opinion be supported in law, and as such, the conviction of the accused‑petitioners Is also liable to be set aside. The only question is whether I should direct a further re‑trial. As has been made clear above, the accused‑petitioners have for no fault of theirs, been already subjected to tree different trials and like number of appeals spreading over a period of about seven years ; and regard being had to the same, I think it will not at all be fair to subject them to the trouble and expenses of yet another re‑trial. I am of the opinion in consideration of the facts and circumstances of the case that the matter should finally terminate here and the accused should be acquitted rather than be subjected to another re‑trial. In the result, the Rule is made absolute, the order of convic tions and sentences complained of is set aside and the accused -petitioners are acquitted of the charges against them. S. B. Rule made absolute.