In Re: Ganesa Fillai and Another

Somasundaram, J.—This revision is by the two accused against their convictions and sentences u/s 332; I.P.C. by the Sub-Divisional

Magistrate, Poonamallee. As the sentence is only a fine of Rs. 50 in each case and is non-appealable, the revision has been preferred to this Court,

The point of law taken before me by Sri R. Sundaravaradam, learned Counsel for the petitioners, i.s this. This case was originally tried by the

Special First Class Magistrate, Saidapet. Before him P. Ws. 1 to 5 were examined. Subsequently the case was transferred to the file of the Sub-

Divisional Magistrate, Poonamallee,

He examined the sixth witness and acting on the evidence of P. Ws. 1 to 5 recorded by the Special First Class Magistrate and also on he evidence

of P. W. 6 recorded by him, he convicted the petitioners. It is contended that when the case was transferred after the examination of the five

witnesses to the file of the Sub-Divisional Magistrate, he must have examined all the witnesses de novo. This right of getting the witnesses examined

denovo which was originally granted by Section 350 Cri. P. O. has no doubt been taken away by the present amendment. The discretion of the

examination of witnesses do novo is now vested in the Magistrate to whom the case is transferred or the Magistrate who succeeds the prior

Magistrate.

But a Bench of this Court consisting of Govinda Menon and Basheer Ahmed Sayeed JJ. In Re: Natesan Servai and Others, has taken the view

that a conviction is illegal if it is based on the evidence partly recorded by one Magistrate and partly by another Magistrate to whom the case has

been transferred. There it is pointed out that when a case is transferred it must be for trial or enquiry whether it is u/s 192(1) or u/s 528 Crl P.C. In

a case of transfer u/s 192(1) the Magistrate mentioned therein may transfer any case of which he has taken cognizance for enquiry or trial to any

Magistrate subordinate to him. whereas u/s 528(2) Crl. P.C. the Magistrate mentioned in the section can withdraw any case from or recall any

case which he has made over to any Magistrate subordinate to him or may transfer for trial and enquiry to any Magistrate competent to enquire

into.

The expression ""for enquiry or trial"" is used in both the sections. The transfer for enquiry or trial has been considered in the above decision of

Govinda Menon and Basheer Ahmed Sayeed JJ. They have held that the transfer is illegal. But I do not construe it as saying that the court has no

power to transfer a case at such a stage. What they have meant is that a conviction is illegal if it is based on evidence partly recorded by one

Magistrate and partly recorded by another Magistrate. If the tansfer is effected under the provisions of Section 528(2) the Magistrate to whom it is

transferred must examine the witnesses de novo.

They purport to follow the ruling in Tota Venkanna In re, 2 Weir 152, wherein it was held that the Magistrate to whom the case had been

transferred must rehear the witnesses. This is consistent with the interpretation sought to be given by Sri Sundaravaradan that when the case was

transferred at the stage at which this was transferred to a new Magistrate, he should examine the witnesses afresh and dispose of the case. That is

to say, there must be a fresh trial when it is transferred to him as the expression used is ""for enquiry or trial"" means full trial and not) a partial trial

based on the evidence partly recorded by him and on the evidence recorded by the other Magistrate from whose file the case was transferred. In

this view, inasmuch as the Sub-Divisional Magistrate has not examined all the witnesses afresh, the conviction is vitiated by this illegality. The only

question is whether the case should be sent back for fresh trial. Since the sentence is only a fine of Rs. 50 in each case, I do not think that the ends

of justice require that the case should be sent back for fresh trial.

The convictions and sentences are set aside and the petitioners are acquitted. The fines if collected will be refunded. DE/A. Convictions set

aside.