Patna High Court
Daroga Chowdhury And Ors. vs Emperor on 13 June, 1919
Equivalent citations: 52IND. CAS.398, AIR 1919 PATNA 578(2)
JUDGMENT Atkinson, J.
1. The seven petitioners apply that the order of the learned Sessions Judge, dated the 14th April 1919, may be set aside, and that consequential upon setting aside of the same that the order of the Joint Magistrate Mr. Tadani, who convicted them on the 14th of March 1919, should also be set aside.
2. Two points were taken in support of the application on behalf of the petitioners. The petitioners were charged with having committed certain offences under various sections of the Indian Penal Code and the Cattle Trespass Act.
3. The case against the accused was originally assigned to the Joint Magistrate, Mr. Tadani, forbearing and disposal. Mr. Tadani commenced the hearing of the case on the 22nd August 1918, and he continued the investigation of the charges against the accused up to 24th October 1918. Mr. Tadani was then about to be transferred from the District of Monghyr; and he applied to the Sub-Divisional Officer requesting that the trial of this prosecution might be transferred to the file of some other officer for final disposal.
4. Accordingly on the 24th October 1918 the Sub-Divisional Officer, Mr. Majid, transferred the case from the file of Mr, Tadani to his own file, he being the Magistrate most suitable to dispose of the prosecution instituted against the accused.
5. Immediately after the transfer to the file of the Sub Divisional Officer the accused in the exercise of their statutory right applied for a de nova or fresh trial: which application was granted by the Sub-Divisional Officer.
6. The Sub Divisional Officer proceeded de novo to have the evidence recorded afresh; disregarding all the evidence which had been originally taken and recorded by Mr. Tadani during the period he acted as Magistrate in the trial of the prosecution case against the accused.
7. The Sub-Divisional Officer proceeded in the usual way and recorded the evidence on behalf of the prosecution.
8. On the 15th January 1919 Mr. Tadani was re-transferred back to the district of Monghyr; whereupon the Sub-Divisional Officer re transferred the trial of this prosecution to the file of Mr. Tadani, remarking that it would economise time if he would take up the case from where he, Mr. Tadani, had left it off. The Sub-Divisional Officer had not proceeded in the course of his investigation as far as Mr. Tadani had at the time that the case was originally transferred to the file of the Sub Divisional Officer in October. The wording of the Sub-Divisional Officer's order is as follows: "This will economise time, since he, Mr. Tadani, will take up the hairing at the point where ha had left."
9. Now it is contended before me that that order of the Sub-Divisional Officer, dated the 15th January 1919, was an improper and illegal order made without jurisdiction and consequently that the order of conviction by Mr. Tadani was illegal and void in law, and that the accused have been gravely prejudiced in this trial by reason of the illegal order of transfer made by the Sub-Divisional Officer, and that no appeal properly lay therefrom; and in addition it is contended that the judgment of the learned Sessions Judge of Monghyr in this case was a judgment not in accordance with law, and that, therefore, it should be set aside.
10. I may say that the argument on the second point was not seriously pressed by Mr. Pal. He devoted the entire of his argument to the first ground of the objection, and I cannot say that I was impressed by his observations with reference to the second ground asserted for impeaching the validity of the conviction of the accused.
11. Mr. Pal's contention is that the law requires, speaking generally, that the person who convicts an accused shall be the person who has heard the evidence and seen the witnesses at the trial; and the law, prima facie, does not contemplate or permit a change or transfer of Judges during the intervening stages of the trial between the commencement and the end of the prosecution. Sometimes it is inevitable that a transfer may take place of an officer pending a trial, and in such cases Section 350 of the Criminal Procedure Code seems to make provision as to the procedure to be adopted in such event. Sub-clause (b) of Section 350 provides that "Where a Magistrate is transferred and the evidence is partly recorded by one and partly by the other who acts as successor then it is competent for the successor to convict the accused on the evidence recorded by his predecessor: provided that no prejudice thereby be done to the accused."
12. I admit that Clause (b) has no application to the facts of this case. Section 350 of the Criminal Procedure Code, in my opinion, applies to all oases of transfers as well as to cases in which one Magistrate succeeds another in succession and discharge of the duties of his office.
13. Clause (a) of Section 350 undoubtedly confers a right upon accused persons, where a transfer takes place in the constitution of the Tribunal which commenced to try the case, to have a fresh trial de nova. I take it that this means that the succeeding Magistrate must star!; afresh as if nothing had been done; and that all that had been done was completely blotted out and superseded and was no longer any part of the case; otherwise it would be senseless to refer to such right as giving birth to a right of fresh trial de novo.
14. I take Clause (a) of Section 350 of the Criminal Procedure Code to mean a new beginning, a new start unfettered and unrestricted by anything that antecedently had taken place.
15. If that is so, then in my opinion the Sub-Divisional Officer had no power, jurisdiction or right to transfer the case to Mr. Tadani, directing him to proceed with the trial at the point where he, Mr. Tadani, 'originally left off when he had due seisin 'of the bearing of the prosecution, because all that had taken place before Mr. Tadani had been superseded, and must be deemed to be considered as forming no part of the record in the proceeding then actually pending and being prosecuted against the accused. If the learned Sub-Divisional Officer had merely transferred the case to Mr. Tadani to proceed from the point where he, the Sub-Divisional Officer, had left off when he re transferred the case to Mr. Tadani, then I think no objection could be urged against the conviction of the accused by Mr. Tadani acting upon the record of the proceedings in the de novo trial initiated before the Sub-Divisional Officer.
16. Consequently, in my opinion the order of the learned Sub Divisional Officer, dated the 15th January 1919, transferring the case to Mr. Tadani in the manner in which he did was ultra vires and without jurisdiction; and that consequently Mr. Tadani had no authority or jurisdiction to act on' the record of the proceedings which had been antecedently taken before him. Thus in my opinion the accused have been gravely prejudiced in their trial by reason of the course the proceedings took owing to the invalid order made by the Sub-Divisional Officer on the 15th of January 1919.
17. There are many cases on this point argued before me. Two cases are to be found reported as Sobh Nath Singh v. Emperor 12 C.W.N. 138 : 6 Cr. L.J. 431 and Deputy Legal Remembrancer v. Upendra Kumar Ghose 12 C.W.N. 140 : 6 Cr. L.J. 434 respectively; in which the Courts laid down in most emphatic terms that non-compliance with the provisions of Section 350 of the Code of Criminal Procedure involves prejudice to an accused person.
18. I do not go so far myself as to say that per se non compliance with the provisions of Section 350 must necessarily involve prejudice to an accused in every case, but I say it may do so under certain circumstances, and if prejudice ensure, the accused is entitled to a new and fair trial. In the. particular case before me, I am satisfied that the attempt to revive the proceedings which were dead undoubtedly did prejudice the accused, having regard to the fact that in the second edition of the prosecution case oral evidence was given by the witnesses before Mr. Majid, the Sub-Divisional Officer, which was at variance with that originally recorded by Mr. Tadani and that it was impossible for the accused under the circumstances of this case to have used the proceedings recorded before Mr. Tadani, in the subsequent case before the Sub-Divisional Officer, to impeach the inaccuracy of the subsequent evidence, nor would it have been possible, on re-transfer of the case to Mr. Tadani, for the accused to have used the proceedings before the Sub-Divisional Officer to challenge the evidence originally recorded before Mr. Tadani.
19. I am satisfied, therefore, on the entire case that the accused have been materially prejudiced by the course the trial took owing to the defective order of the learned Sub-Divisional Officer, and I accordingly set aside the conviction of the accused before Mr. Tadani, dated the 14th March 1919, and their conviction on appeal before the Sessions Judge, dated the 14th April 1919, and I direct that all the accused be tried de novo.