P L D 1952 Baluchistan 39 (PLP)

R. K. M. SAKER, J. C.‑This is a revision petition by com plainant Muhammad Anwar under the provisions of sec tions 435/439 Cr. P. C. against the order of the Sub‑Judge and Magistrate First Class, Quetta dated 22nd August 1951, in which he allowed a de novo trial at the request of the accused‑respondent in this case before a charge had been framed. The matter was first taken in revision to the Court‑of the learned Sessions Judge in Baluchistan, but since my powers of revision under the provision of section 435 Cr. P. C. are concurrent with those of the Sessions Judge. I do not propose to sit in judgment upon his order in this case. The matter is therefore afresh before me under section 438 On behalf of the petitioner it has been contended that since the word `trial' is nowhere defined in the Criminal Procedure Code, the actual trial of an accused person starts at the time when a charge is framed against him, since proceedings prior to the framing of a charge are to be treated as an inquiry only. Learned counsel relies on A I R 1938 Mad. 742 and A I R 1936 Nag.

220. On behalf of the respondent, learned counsel, however: contends that the entire proceedings in all cases from the time that an accused person appears before the Magistrate must be treated as part of his trial. In support of this contention learned counsel relies on A I R 1922 Lah. 49 and A I R 1937 Bom.

55. From the above rulings it will appear that there is a conflict of opinion as to the meaning of the word `trial' and particularly as to the rights of a person accused of a criminal offence for demanding, in accordance with the provisions of section 350, Cr. P. C. a de novo trial. The case in question is alleged to relate to an offence, which was committed under the provisions of section 403, P. P. C., which is a warrant case. Chapter XXI of the Code of Criminal Procedure deals with the trial of warrant cases and is relevant to observe that the heading to this Chapter is worded as follows: "Of the trial of warrant cases by Magis trate". Similarly this wording is repeated in section 251, Cr. P. C. and the subsequent sections deal with the manner in which Magistrates should dispose of warrant cases. in a like manner, Chapter XX of the Cr. P. C. which deals with the trial of summons cases, is similarly worded. Chapter XXI lays down the procedure for trial not only including, and after, the framing of the charge but also the procedure before a charge is framed. It would, I feel, 1,e logical to assume that all these proceedings must form part of the trial since they are proceedings necessary for the trial of a warrant case in accordance with the provisions of this Chapter Section 350, subsection (1) Cr. P. C. has two provisos attached to it and proviso (a), which is reproduced below, indicates that any accused person has the right to demand a de novo trial when .the second Magistrate commences his proceedings "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 follows, in my view, that the commencement of proceedings by the second Magistrate can only mean the stage at which he proceeds to take up the case irrespective of what stage the case may have reached. In the absence of a definition of the word 'trial' I am therefore inclined to accept the view of the learned judges of the Bombay and Lahore High Courts that all proceedings, even before the framing of a charge, must be treated as forming part of the trial. A cardinal principle governing the trial of any accused person is that the evidence which is led against him, should, in the normal course of events, be recorded by the Magistrate who is trying him. Provision for the transferring of certain evidence under section 33, Evidence Act, is of course available to meet special circumstances. In all other circumstances, in order to ensure that trial is fair, it is necessary that, in order to appreciate the evidence to its full as well as to study the demeanour of the witnesses who give evidence, the Magistrate himself should record the evidence. If therefore I were to hold that no accused person could demand a de novo trial, until after a charge had been framed, it would in effect mean that prosecution evidence would have been recorded by the predecessor of the Magistrate and that the succeeding Magistrate would be compelled to act upon the evidence so recorded, though it was not recorded by himself. In some cases, particularly those of a lengthy or complicated nature, in which de novo trial is not claimed, the second Magistrate might be obliged to act on a great wealth of evidence recorded by his predecessor and would suffer from the disability of not having heard and recorded the evidence himself. This would deprive him of the opportunity of testing the veractity of the evidence himself. There is of course a distinction in the procedure adopted in the trial of summary, summons and. warrant cases ; as well as those cases which are committed for trial to a Court of Session. In those cases, which can be disposed of according to law by the Magistrate who hears the evidence, it would, I think, be illogical to make the assumption that no trial has taken place until a charge has been framed in warrant cases ; for that would infer that all the prosecution evidence and the cross‑examination of prosecution witnesses would be excluded from the proceedings of the trial except for such witnesses who are recalled after the framing of the charge for further cross‑examination. In that event, the record of the trial itself would consist of the further cross‑examination of certain prosecution witnesses and the evidence of defence. The exclusion of prosecution evidence from a trial would be illogical, for the records of a trial as such can hardly be considered to be complete unless the depositions of all prosecution witnesses form part of that record. In all the circumstances of this particular case I consider that the order of the learned Sub‑Judge and Magistrate 1st Class, Quetta, in directing a de novo trial is not improper. The petition for revision is therefore dismissed. I feel, however, that it is necessary for me to make it clear that while this order relates to both summons and warrant cases, the matter is somewhat different in regard to those cases, in which a Magistrate commits a case for trial to a Court of Session. In such cases it will be obvious that the proceedings taken in the Court of committal Magistrate are in the nature of an inquiry only ; since the Magistrate, before committing a case, is only required to satisfy himself that there is prima facie evidence against the accused. As soon as the accused appears before the Sessions Court his trial commences. The entire prosecution evidence is then recorded as well as that of the defence, if any, in this event, proceedings before a committal Magistrate, who is succeeded by another Magistrate, cannot be treated as a trial and an accused person cannot therefore exercise the right accruing to him under section 350, Criminal P. C. As is clear from its language the proviso to section 350 Criminal P. C., is limited to criminal trials only. It is not applicable to inquiries. Announced. A. H.