P L D 1960 (W (PLP)

In order to determine the first point, it is necessary to determine whether the charge framed by a Magistrate subsists if the witnesses examined by him are re‑summoned and re‑heard by the succeeding Magistrate at the instance of the accused exercising his right under proviso (a) to section 350 (1), Cr. P. C. This point has been a subject of discussion in several High Courts and there has been a divergence of opinion. One view is that the charge subsists while the other is that it does not. According to us the charge subsists. Section 350, Cr. P. C., runs as under "(1) Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself ; or he may resummon the witnesses and recommence the inquiry or trial "Provided as follows :‑' (a) In any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them be resummoned and re‑heard ; (b) the High Court or, in cases tried by Magistrates sub ordinate to the District Magistrate, the District Magistrate may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the Magistrate before whom the conviction was held, if such Court of District Magistrate is of opinion that the accused has been materially prejudiced thereby, and may order a new inquiry or trial." It is clear that under subsection (1) of section 350, the succeed ing Magistrate has two alternative courses open to him. He can either act on the evidence already recorded by his predecessor or partly recorded by his predecessor and partly recorded by him, or recommence the inquiry or trial. The language employed makes it quite clear that if the first alternative is adopted, the proceedings before the first Magistrate will remain un‑affected and the succeed ing Magistrate can act on the charge framed by his predecessor. The proceedings before the succeeding Magistrate are merely a continuation of the proceedings before the preceding Magistrate. The second Magistrate can act on the evidence already recorded by the first Magistrate. The charge having already been framed, the second Magistrate therefore can only convict or acquit the accused. He cannot discharge him. But this will not be the case if the second Magistrate adopts the second course, and re‑commences the enquiry or trial, for the Magistrate then starts the case anew. He proceeds with the case right from the beginning. In that case all the proceedings before the first Magistrate including the charge are wiped out. He can discharge the accused or frame a charge against him. Proviso (a) to subsection (1) of section 350, Cr. P. C., confers a right on the accused when the 2nd Magistrate commences his proceedings, to demand that the witnesses or any of them be resummoned and re‑heard. Obviously the accused can exercise this right only when the 2nd Magistrate adopts the first course namely that he proceeds to act on the evidence already recorded by his predecessor or partly recorded by his predecessor and partly recorded by him. The idea behind this proviso, according to us, is to enable the second Magistrate to see the witnesses examined by his predecessor himself, mark their demeanour and form his own opinion about their evidence. One of the principles of criminal law is that no one should be convicted, without his consent, by a Magistrate who has not himself examined the witnesses. The occasion for the exercise of this right will however not arise if the 2nd Magistrate adopts the second course, and re‑commence the inquiry or trial, for in that case, he himself will have an opportunity to see all the witnesses on which the prosecution rely. The proceedings before the first Magistrate are all annulled because the second Magistrate, ignoring the pro ceedings before the 1st Magistrate, proceeds with the case right from the beginning and there will remain nothing for him to act upon. The word `commences' employed in the proviso should not be confused with the word `re‑commence' employed in the sub section. One has absolutely no relation to the other. This will be further clear from the fact that while the words `enquiry or trial' safe used in the subsection, the word `proceedings' are used in the proviso. It is therefore clear that the right under the proviso can be exercised only when the second Magistrate adopts the first course, that is when he does not want to proceed with the case from the beginning but wants to proceed from the stage at which it was left by the first Magistrate, and thus proposes to base his judgment on the evidence recorded by the first Magistrate if the entire evidence was recorded by him, or on the evidence partly recorded by the first Magistrate and partly recorded by him. This he cannot possibly do if the previous proceedings including , the charge are not left intact Consequently the only judgment which the second Magistrate in that case can pronounce will be either of acquittal or of conviction. The charge framed by the first Magistrate being there, he cannot pass an order of discharge. There is ample authority in support of this view. In the case reported in Pir Moosajan Pir Aka Muhammad Ali Jan v. Bachayo Silu and others (I L R 1941 Kar. 171), Sir Godfrey Devis, the then Chief Judge of the Chief Court of former Sind held and with him Lobo, J. concurred, that when a Magistrate "recommences" a trial in the words of section 350 (1) of the Code of Criminal Procedure, he leaves every thing in the previous trial behind, with the result that the charge, if framed, in the previous proceedings is annulled, but when the Magistrate re‑summons and re‑hears the witnesses at the instance of the accused exercising his right under the proviso, the charge is not annulled and the proceedings before the second Magistrate are `merely a continuation of the proceedings before the first Magistrate. A Division Bench of the High Court of Madras in a case reported in Tanguturi v. Nalam Krishna (A I R 1915 Mad. 23) has gone a step further. There it was held that the charge would subsist even when the succeeding Magistrate acts suo moto and re‑commences the enquiry or trial. We would like to make it clear here that we do not subscribe to this extreme view. Distinction has to be drawn between the proceedings started afresh by the Magistrate on his own_ and those started at the instance of the accused under proviso to section 350 (1), Cr. P. C. Subsequent to this decision, Wallace, J., sitting as a single Judge held in the case reported in Vudigalpudi Gadu, In re (A I R 1925 Mad. 317) that if the accused insists that the trial be gone on from the beginning, the pre vious proceedings are wiped out. The learned Judge has given no reason in support of this proposition. He assumed that the accused has a right to insist that the trial be gone on from the beginning Section 350, Cr. P. C., nowhere says that the accused has such a right. The learned Judge has made no reference to the above mentioned Division Bench judgment of his own Court. The point before the learned Judge in fact was whether the complainant can insist on the examination of the witnesses whom the Court, at the instance of the accused has re‑sum moned and whom the accused on re‑consideration does not want to be examined. The point whether the previous pro ceedings are wiped out if the witnesses are resummoned and re‑heard at the instance of the accused was not before the learned Judge. Thereafter in the case reported in Ramalin gam v. Emperor (A I R 1934 Mad. 475), Bartswell, J., also sitting as a single Judge, held that the proceedings are wiped out if the witnesses are re‑summoned and re‑heard at the instance of the accused. The learned Judge like Wallace, J., has made no reference to the above Division Bench judgment. After this case, two other cases were decided by the same High Court which are in con formity with the view that we have taken. One of those cases is reported in D. N. Yenkatanarayana v. Emperor (A I R 1937 Mad. 448) in which Penerang Row, J., sitting as a single Judge held that the pre vious proceedings are not wiped out. The other case is reported in Ramaswami Naicker v. Rangaswami (A 1 R 1947 Mad. 245) in which Yahya Ali, J., dissenting from the judgments reported in A I R 1925 Mad. 317 and A I R 1934 Mad.. 475 held that the previous proceedings are not wiped out. Same view has been taken by a Division Bench of Madhya Bharat High Court in a case reported in The State v. Ambaram and others (A I R 1953 Madhya Bharat 1). There is a case reported in A I R 1922 Lah. 41 in which, in effect it has been held that upon the exercise of the right under the proviso to section 350 (1) the previous evidence and the charge are wiped out. The question before the learned Judges was whether the previous statement of a wit ness which he retracts before the second Magistrate is substan tive evidence and admissible. They held that it was not admis sible, basing their conclusion on the principle that the accused cannot be convicted, without his consent, by a Magistrate who has not heard his evidence. With all due respect, we regret we cannot accept this view. If this view is allowed to prevail, the first alternative in section 350 (1) will have no meaning. For, how can the second Magistrate use the evidence recorded by his predecessor if that evidence is not admissible. This ruling, as it were, gives a power of veto to the accused who exer cising his right under the proviso can prevent the second Magis trate from proceeding with they case from the stage at which it was left by his predecessor. The ruling also overlooks the dis tinction between the second alternative in section 350 (1) and the proviso to it, although as said in the earlier part of our judgment, there is a marked distinction between the two. The terminology employed in one is quite different from that em ployed in the other, and all this could not be without purpose. We are therefore firmly of the view that when the witnesses are re‑summoned and re‑heard at the instance of the accused, exercising his right under proviso (a) to subsection (1) of section 350, Cr. P. C., the previous proceedings and the charge, if any, are not annulled. They subsist and form part of the record when the second Magistrate proceeds with the case. Mr. Abrar Hussain therefore could not pass an order of discharge, the charge framed by Mr. Nasrullah being there. The only order that he could pass would be of acquittal or conviction. The order passed by him has therefore to be treated as that of acquittal. The next question is whether the case should be remanded to the lower Court for re‑trial. The learned Additional Sessions Judge wants it to be done on the ground that Mr. Abrar Hussain has not complied with the mandatory provisions of the Criminal Procedure Code. The learned Judge has not specifically men tioned that provision, but we think, he had section 256, Cr. P. C. in his mind when he made this reference. This section reads as under "If the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state (at the commence ment of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith), whether he wishes to cross‑examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be re‑called and, after cross‑examination and re‑examination if any, they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken, and, after cross‑examination and re‑examination (if any), they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence. (2) If the accused puts in any written statement, the Magis trate shall file it with the record." It is clear that section 256 (1) consists of three parts two of which are for the benefit of the accused and the third for the benefit of the prosecution. Under this subsection, the accused gets a right to demand that the witnesses examined by the prosecution before the charge be recalled for the purpose of cross‑examination. After the cross‑examination of the witnesses thus re‑called, the prosecution gets a right to examine the remaining witnesses. Thereafter the accused gets a right to enter upon his defence and produce his evidence. So, if the first and the third part of this subsection have not been complied with, the respondent in this case should have no grievance as he has been acquitted in spite of it. But this cannot be said about the second part. It was the duty of B the Court to examine the remaining witnesses before passing the order. There are some Madras rulings which say that in a case governed by section 350, Cr. P. C., the rights of the accused have to be found in the provisions of that section. They say that when the charge is already framed, the position of the second Magistrate becomes the same as would have been that of his predecessor if, after framing the charge, he permitted the accus ed to further cross‑examine the prosecution witnesses under section 256 (1), Cr. P. C. There is considerable force in this proposition by (sic) the acceptance of this view will render nugatory the provisions of section 256, Cr. P. C. Rut since this point is not directly at issue and as we propose to decide the above ques tion on other grounds, we do not think it necessary to deal with it in this judgment. The offences alleged to have been commit ted were under .1sections 448 and 426, Cr. P. C. Mr. Nasrullah framed charge against the respondent for the offence under sec tion" 448, P. P. C. only. The learned A. A. G., frankly conceded that the intention necessary for establishing the offence under section 448, P. P. C. is not even alleged. The facts alleged in the complaint do not show that the respondent entered the pre mises with intent to insult, intimidate or annoy or to commit any offence. He appears to have entered the premises in the assertion of a bona fide claim of right. There is evidence to show that a civil suit, filed by the respondent in respect of this shop, was pending when this prosecution was launched, and it is the case of the respondent that it was done to put a pressure on him to withdraw the suit. Taking all these facts and circum stances into consideration we consider that interest of justice will not suffer if the re‑trial is not ordered. We therefore return the reference. A. H. Reference returned.