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Criminal Revision Application No. 340 of 1956, decided on 31st May 1958.

, S. 350 (1) proviso (a) ‑Witnesses re‑summoned on request of accused‑Charge drawn up in previous proceedings remains intact‑Order in favour of accused on de novo proceedings to be one of acquittal not of discharge-Commencing trial over again by Magistrate on his own initiative--- Previous proceedings wiped out‑Accused can exercise his right at every successive change of Magistrate.

Held, that where an accused person exercises his right under proviso (a) to subsection (1) of S. 350, Cr. P. C., proceedings that take place in the Court of the predecessor Magistrate remain intact, as, for instance, the charge framed in such proceedings.

Therefore, if After fresh proceedings, the accused is to be let off, the only order that can be passed is an order of acquittal and not an order of discharge.

Where the succeeding Magistrate had passed an order of discharge and the prosecution on a petition before the Sessions Judge got an order of further inquiry passed under S. 436, Cr. P. C.

Held that the order was bad in law and must be set aside.

The Sessions Judge was in error in holding that the previous proceedings including the charge were wiped out when accused's request for re‑summoning witnesses was allowed.

Further, that the moment the succeeding Magistrate re commences the trial on his own option, the previous proceedings are wiped out.

Accused can exercise his right at every successive change of Magistrate.

This is an application under S. 439, Cr. P. C. against the order of the Sessions Judge of Hyderabad (Mr. Muhammad Hanif) directing further inquiry into the case filed against the applicant under S. 43 (3) of the Sind Abkari Act.

The applicant was challaned in the Court of the City Magistrate (Mr. Abdul Rahman Jujeno) of Hyderabad, who, after recording some evidence, framed charge against the applicant for the offence punishable under S. 43 (3) of the Sind Abkari Act. On his transfer, the case came up before his successor Mr. Nasrullah. The applicant; in the exercise of his right under the proviso (a) to S. 350 (1) of the Cr. P. C., claimed what is called de novo trial. The learned Magistrate granted that request and recorded the evidence of the complainant, but before he could proceed further, he was transferred and succeeded by Mr. Jakrani when the applicant again exercised his right under the proviso (a) to S. 350 (1), Cr. P. C. After the exercise of that right, the applicant's advocate made a statement that the witnesses be called for cross‑examination. Thereafter, the case was transferred to the Court of the Additional City Magistrate of Hyderabad from whose file, it was received back by Mr. Jakrani on 11‑11‑55, The applicant again exercised his right under the above proviso. Thereafter, Mr. Jakrani passed an order discharging the applicant under S. 253, Cr. P. C. Against this order a revision application was filed in the Court of the Sessions Judge of Hyderabad, which set aside the order of discharge, and directed further inquiry in the case. It is against this order that the present application has been filed.

I have read the order of the Sessions Judge and I find that it is not possible to maintain it, it being based on wrong interpretation of the provisions of S. 350 (1) and proviso (a) to that action. Subsection 1 of S. 350 empowers the succeeding Magistrate to act on the evidence 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 of trial., Proviso (a) confers a right on the accused person, when the succeeding Magistrate commences proceedings, to demand that the witnesses or any of them be resummoned and reheard. Thus it is clear that it is optional with the succeeding Magistrate either to act on the evidence recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself, or to resummon the witnesses and recommence the inquiry or trial. But, if the accused exercises his right under proviso (a) to the section and demands that the witnesses or any of them be resummoned and reheard, the Court is bound to grant that request. The short point for consideration now is, what happens to the proceedings that took place in the Court of his predecessor if the succeeding Magistrate recommences' the trial. My own view which is supported by several authorities is, that the previous proceedings are wiped out, the moment the succeeding Magistrate recommences the trial. He now starts on a clear slate. But that would not be case if action is taken under proviso (a) of S. 350, Cr. P. C. There is a material difference in the language used in the proviso and that used in the subsection. The proviso merely confers a right on the accused person to demand that the witnesses or any of them be resummoned and reheard. The words recommence the trial' used in subsection (1) of S. 350 do not find place in this proviso. All that the accused person can claim under the proviso is to ask the Court to resummon any or all of the witnesses and rehear them ; the deal being to enable the succeeding Magistrate to see the witnesses, mark their demeanour, and hear their evidence. But the proceedings that take place in the Court of the predecessor of the Magistrate, are left intact, and remain unaffected by the exercise of the right under this proviso. In this case, as said above; the Magistrate before whom the case was challaned, had framed the charge. This charge therefore held the field when Mr. Jakrani commenced the proceedings and reheard the witnesses at the request of the applicant. Therefore the only order which Mr. Jakrani could pass would be the order of acquittal and not that of discharge. Instead of doing so Mr. Jakrani has passed an order of discharge under S. 353, Cr. P. C. The learned Sessions Judge was therefore in error in holding that the previous proceedings including, the charge werel8 wiped out when Mr. Jakrani granted the request of the applicant under the proviso (a) to the above section. It makes no difference in what language the request under the proviso is couched. By using different terminology, the applicant does not acquire more right than what is conferred on him by the proviso. The learned Sessions Judge has been carried away by the use of the word 'de novo' which, according to him, meant recommencing the enquiry or trial, when Mr. Jakrani granted the application of the applicant praying for de novo trial. It is here where the learned Sessions Judge has fallen in error. The word de novo' does not find place anywhere in section 350.

Upon this view of the matter, I hold that the order of further inquiry passed by the Sessions Judge on the ground that the order passed by Mr. Jakrani was the order of discharge and not of acquittal, is bad, and must be set aside. The application therefore is allowed.

A. H. Petition accepted

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