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1. This Rule is directed against the order of Sri M.S. Banerjee, Magistrate, First Class, Burdwan dated 19-1-66 whereby he directed that the trial which was being proceeded against the accused petitioners should be switched on to an enquiry under Chapter XVIII of the Code of Criminal Procedure.

2. The facts are that the opposite party complainant filed a petition before Sri S. Sarkar, First Class Magistrate, Burdwan against the accused petitioners alleging that they had committed offence under Sections 147, 148, 447, 379, 504 and 342 of the Indian Penal Code. It was alleged inter alia that the accused persons along with a number of men formed into an unlawful assembly and entered the house of the complainant being armed with deadly weapons and one of them tied his hands and feet with a gamcha and the petitioners carried away some paddy from the house of the complainant. Tbis petition of complainant was sent by the learned Magistrate to the Officer-in-Charge of Bhatar Police Station with a direction that it should be treated as a First Information Report and it was also directed that the matter should be investigated. Ultimately the police submitted a final report and it was followed by a naraji petition before the court of the learned Magistrate on 7-6-65 and a judicial enquiry was held and the petitioners were ultimately summoned to stand trial under Section 382 of the Indian Penal Code. Thereafter the case was transferred to the file of Sri M. S. Banerjee, Magistrate First Class, Burdwan who examined some witnesses. On the 15th December 1965 a petition was filed before him by the prosecution stating that the evidence really disclosed a case under Section 395 of the Indian Penal Code and therefore an enquiry should be made for committal under Chapter XVIII of the Code. Thereafter on the 19th January 1966 a direction was given that the case would proceed accordingly.

3. In this Rule we are concerned with two orders passed by the learned Magistrate. On 15-12-66 the learned Magistrate examined four of the prosecution witnesses in chief. At that stage a petition was filed on behalf of the prosecution stating that there were ingredients of offence under Section 395, I. P. C. and the case should proceed under Chapter XVIII of the Code of Criminal Procedure. This matter was adjourned till 19-1-66 as stated before and on this date the learned Magistrate came to a decision after hearing both the sides that the case would be proceeded under Chapter XVIII of the Code of Criminal Procedure. As such he directed that on 23rd February 1966, the mineses for the prosecution who were examined in chief and partly cross examined should further be cross examined by the defence. He also directed that the remaining prosecution witnesses should also be examined, presumably under the procedure as laid down in Chapter XVIII of the Code.

4. Mr. Nalin Banerjee in support of this Rule has submitted that the said order passed by the learned Magistrate was not in accordance with law inasmuch as firstly, he was in error in thinking that if really any theft was committed by members of the unlawful assembly, the evidence already on record was sufficient for a conclusion that the proceeding should be switched on to an enquiry under Chapter XVIII for an offence alleged to have been committed under Section 395 of the Indian Penal Code. His second point is that the learned Magistrate as soon as he decides that an enquiry should be embarked upon under Chapter XVIII of the Criminal Procedure Code, it was his duty to examine the prosecution witnesses who were examined before, de novo. The main reason is that in so far as the proceeding initially started was concerned, it was nothing but a trial of an offence under the warrant procedure as envisaged in Chapter XXI of the Code. The procedure according to Mr. Banerjee being entirely different, the switching on to the enquiry procedure, without giving the accused persons the advantages as provided for in Chapter XVIII was an illegality.

6. We have already indicated the facts that no prayer for de novo trial was made but by the order of the Court as quoted before, a de novo enquiry was directed to be made. In the concluding portion of the judgment his Lordship however said that the learned Magistrate should proceed in accordance with law by following the provisions of Chapter XVIII of the Code of Criminal Procedure. In any event, this Single Bench decision clearly goes to show that a principle of law has been laid down to the effect that de novo enquiry should be started in cases which are dealt with by the Magistrate under Section 347 of the Code. Now we have to examine whether in view of this Court's decision we are required, in the present Rule to direct the learned Magistrate that his order for cross-examination of the witnesses as passed on 19-1-66 should be set aside and he be directed to embark upon a fresh and de novo enquiry. Mr. Justice Debabrata Mookerjee appears to have followed a Calcutta decision in the case of G.V. Raman v. Emperor . Their Lordships made an observation as follows in that decision: