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Then reference has to be made to Section 3-50. Section 350 occurs iii chap, xxiv and the provisions apply to any inquiry or trial. Section 350 refers to a case where a Magistrate having heard and recorded the whole or part of the evidence ceases to exercise, jurisdiction and he is succeeded by another Magistrate and in such a case the section provides that the Magistrate, succeeding, may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself. There is a proviso to Section 350 (l) and it says that 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. The proviso, therefore, shows that it is open to an accused person to apply to the Magistrate saying that the witnesses should be re-summoned and should be reheard. Then there is Section 354 which provides that in inquiries and trials (other than summary trials) under the Code by or before a Magistrate (other than a Presidency Magistrate) or Sessions Judge, the evidence of the witnesses shall be recorded "in the following manner". It is clear from Section 351 that Section 354 docs not apply to summary trials. Section 354 is succeeded by Section 355 and according to Section 355, that section speaks of a record in summons cases and in trials of certain offences by the first and second class Magistrate. Now, the language of Section 353 shows that in cases governed by Section 855 a Magistrate is bound to make a memorandum of the substance of the evidence.' Section 263 speaks of recording of evidence which is permissive and B. 26-1 speaks of recording a judgment embodying the substance of evidence. Now in the expression "'the evidence of the witnesses Shall be recorded in the following manner" as used in S. 854 has I think, a technical meaning and that technical meaning is to be gathered from 8. 855 because according to Section 355 the Magistrate has to make a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds. This provision is unlike the provision contained in either Section 263 or Section 261.

[6] But the point taken by Mr. Chandrachud is that according to the true view as explained indecisions to which I will now refer, the notes of evidence made by a Magistrate under Section 263 constitute his private property. Support to this argument is derived from a decision of this Court reported in Emperor v. Chimanlal.. 29 Bom. L.R. 710 and from a subsequent decision of this Court reported in in re Tippanna, 36 Bom. L. It. 212. The case in Emperor v. Chimanlal, was a case which fell within Section 264 and that case lays down that the notes of evidence, if made by a Magistrate in cases in which an appeal lies, do not form part of the record under Section 264 (2). It Will appear from the judgment that in that ease a Bench of Magistrates had taken notes of evidence which were subsequently destroyed and the point taken on behalf of the accused was that the Bench Magistrates ought to have taken the notes of evidence an should have made them part of the record of the case. This contention was rejected by Patkar J. The case reported in in re Tippanna. was a case in which the Honorary First Class Magistrate had made an order of acquittal. The learned Magistrate had taken down notes Of evidence of witnesses for his own guidance and wrote a judgment acquitting and discharging the accused under S. 2-58, Criminal P. C. What happened was that in that case the learned Magistrate made an order directing the complainant to pay compensation to the accused under Section 250, Criminal P.C. and it is under those circumstances that the question arose for decision as to whether the notes of evidence which were kept by the Magistrate for his own guidance should be regarded as part of the record of the case. Sir John Beaumont who delivered the judgment of the Court in that case observed that neither Section 263 nor Section 264 required a Magistrate to record evidence in the case. That, I think, is clear from the language of the sections themselves. He also observed that Section 355 which immediately follows Section 354 introduces the sections providing how in trials other than summary trials the evidence is to be recorded, and he took the view that Section 334 appeared to him clearly to limit the operation of Section 355 and that in summary cases the recording of evidence was governed by Sections 263 and 264 of the Code and Section 355 of the Code had no application to summary cases. It is to be noted that in that case Sir John Beaumont was considering a case reported in Satish Chandra v. Manmatha Nath, 48 cal. 280 and also a case reported in Emperor v. Manta Tiwari, 49 ALL. 201 and ho came to the conclusion that the view of the Allahabad High Court was to be preferred to that of the Calcutta High Court. In the Allahabad case the view taken was that in a case which is governed either by Section 263 or by Section 264 a Magistrate is not bound to record evidence and the notes of evidence, if taken by the Magistrate, constitute his private property. This view was not accepted in Calcutta and Sir John Beaumont considered that the Allahabad view was to be preferred to the Calcutta view.