In Re: R.M. Ramasamy

S. Ramachandra Ayyar, C.J.—This is a reference by Kailasam J., the question for decision being, whether on transfer of a case u/s 528 of

the Code of Criminal Procedure, after the evidence of some witnesses had been recorded by one Magistrate, the accused would be entitled to

insist upon a de novo trial or enquiry as the case may be, by the Magistrate to whom such transfer is made. In In Re: Ganesa Pillai and Another,

Somasundaram J., held that there must be a fresh trial whenever a case is transferred from one Magistrate to another even though the former had

examined some of the prosecution witnesses. The correctness of this decision has been challenged in this reference.

The Petitioner and one Arunachalam were charged before the District Magistrate, Ramanathapuram, with having committed offences punishable

under Sections 420, 467, 468, and 471 read with Section 34, Indian Penal Code. The District Magistrate took the case on file and transferred it

for enquiry to the Sub-Magistrate, Tiruvadanai, and in the enquiry which commenced in that Court six witnesses were examined for the

prosecution. There were some more to be examined. At that stage the case was transferred by the District Magistrate to the file of the Sub-

Magistrate of Sivaganga. But before the enquiry could be resumed in that Court, there was another order of transfer of the case by the same

authority to the Sub-Magistrate at Karaikudi. When the case was taken up for enquiry there, the Petitioner herein applied to the trying Magistrate

for examination afresh of the six witnesses whose evidence had already been recorded by the Sub-Magistrate, Tiruvadanai. This request was

refused by the Magistrate. The correctness of that order was challenged before Kailasam J., who made this reference.

The substantial contention on behalf of the Petitioner, is, that whenever a Magistrate in charge of a case ceases to exercise jurisdiction by reason

of the transfer of the case to another Magistrate or otherwise, the accused has a right to demand a de novo trial of the case. That, no doubt, is the

general principle under which a Judge or Magistrate must decide only on the evidence tendered before him, vide Payare Lal Vs. State of Punjab,

But statutes regulating procedure of civil and criminal trials have not always accepted this principle in its entirety. For example, Section 350 of the

Code of Criminal Procedure, even in its original form, enabled the successor Magistrate, to act on the evidence recorded by his predecessor. But

this departure from the general principle was made subject to two important provisos under the Code of 1898, namely, (i) that it was open to the

accused to demand and obtain a de novo trial in respect of all or any of the witnesses whose evidence had already been recorded and (ii) even if

the accused did not avail himself of the right conferred by the first proviso aforesaid, the Court of appeal or revision, acting, if need be, even suo

motu, can set aside any conviction based on the evidence not wholly recorded by the Magistrate, if it were of opinion that the accused had been

materially prejudiced thereby.

But experience showed that this rule led sometimes to considerable delays in the trial of criminal cases. The uncontrolled right conferred on the

accused not unoften occasioned its abuse and entailed needless duplication in the matter of examination of even unimportant and formal witnesses.

The Legislature, therefore, by the Amending Act XXVI of 1955, repealed the two provisos aforesaid and substituted, in their place, a new

proviso, the effect of which is to vest a discretionary power in the successor Magistrate to permit or refuse the examination of any witnesses whose

evidence had already been recorded by his predecessor. The right of resummoning the witnesses under the section as originally enacted was

confined to trials, but the terms of the amended proviso would apply both to trials and enquiries. The object of the Legislature in effecting the

change is to facilitate speedy disposal of criminal cases. At the same time, the interests of the accused have been safeguarded by vesting a

discretionary judicial power in the Magistrate to permit a de novo trial with respect to all or any of the witnesses, who had previously been

examined. Any improper refusal by the Magistrates to direct a fresh examination of all or any of the witnesses previously examined can, of course,

be corrected by a Court of appeal or revision.

By reason of Sub-section (3) to Section 350, the provisions of Sub-section (1) thereof will be attracted to a case which has been transferred

under the provisions of this Code from one Magistrate to another. Therefore, for this rule to apply, the transfer must have been made under the

provisions of the Code from one Magistrate to another. A plain reading of the section would show that where a criminal case had been transferred

from one Magistrate to another after the former had recorded the evidence of some witnesses, the accused will have a right to resummon the

witnesses whose evidence had been recorded by the previous Magistrate, only if the succeeding Magistrate permits him to do so.

There can be little doubt that in the instant case the transfer of the case made by the District Magistrate from the Sub-Magistrate, Tiruvadanai, to

the Sub-Magistrate, Sivaganga, and then to Karaikudi and this point has not been controverted was done under the powers vested in him u/s 528

of the Code. In In Re: Ganesa Pillai and Another, Somasundaram J. recognized that the authorities mentioned in Section 528(2) will have power to

transfer the case at any stage of the trial. But the learned Judge held that the words trial or enquiry in Section 528(2) could be taken as meaning

only a de novo trial or enquiry. In so holding, he purported to follow the decision of a Bench of this Court reported in Natesan In re ILR (1951)

Mad. 792. That was a case where the sub-divisional Magistrate after taking cognizance of a case involving offences punishable u/s 147, Indian

Penal Code, etc., discharged some of the accused and framed charges against the rest. He then transferred the case for disposal to a Magistrate

subordinate to him, as the charge framed could be tried by that authority. It was held that the transfer of the case, at the stage at which it was done,

was illegal. It was, however, conceded by the Public Prosecutor in that case that the transfer could not be justified under the provisions of Section

528 of the Code.

Section 192(2) only empowers a superior Magistrate, who takes cognizance of a case, to transfer it to any other subordinate Magistrate; it does

not expressly refer to a case where the Magistrate taking the case on his file, tries it in part and then transfers it to a subordinate Magistrate.

Somasundaram J., did not, however, construe the decision of the Bench as saying that the Court had no power at all to transfer the case at that

stage; the learned Judge understood the case as deciding only that a conviction would be illegal if based on evidence partly recorded by one

Magistrate and partly recorded by another Magistrate. Support for that view was derived from the ruling in Tota Venkanna and others In re

(1900) 2 weir. 152 where it was held that the Magistrate to whom the case was transferred must re-hear the witnesses. The decision above

referred to only states the general principle to which we have made reference earlier. The application of that principle has, however, now been

modified by the statute.

It is unnecessary, for the purpose of the present case, to consider whether the decision in Natesan In re ILR (1951) Mad. 792 can now be

regarded as correct, as that decision was rendered prior to the amendment of Section 350. It will be remembered that even prior to the

amendment, it was not an absolute rule that the conviction by a Magistrate based on evidence partly recorded by him and partly recorded by

another, was per se illegal. The statute only gave the accused a right to recall the witnesses at trial in summons cases and after a charge had been

framed in warrant cases and if the accused did not exercise that power in any of these cases the Court of appeal or revision could interfere if

prejudice had been caused to the accused by reason of not ordering a de novo trial. In all other cases, the convictions would be legal.

Again, we are unable to agree with Somasundaram J., that the words inquiry or trial occurring in Section 528(2) should have the same meaning as

those words occurring in Section 192(2). The latter section contemplates a transfer immediately after taking cognizance of the case by the superior

Magistrate, whereas the former contemplates a transfer at any stage of the trial. As Narasimham C.J. has pointed out in Rushi Naik Vs. The State,

the construction ignores the provisions of Sub-section (3) of Section 330, Code of Criminal Procedure. Sub-section (2) of Section 528, Code of

Criminal Procedure, clearly contemplates a case where after some evidence has been recorded by a Subordinate Magistrate the Sub-Divisional

Magistrate either withdraws the case to his file or recalls it (if he had previously transferred it to that Magistrate for trial).

Mr. Ramasubramaniam appearing for the Petitioner, however, put his case in a slightly different form. He contended that as Section528(2)

empowered the superior Magistrate to refer the case for inquiry or trial, what was contemplated was a full trial or enquiry and not only the

unfinished portion of the trial. Our attention was invited, in this connection, to the difference in language employed in Section 526(8) and Section

528(2) of the Code. The words at any stage used in the former section are omitted in the latter section. On that it is argued that the transfer u/s

528(2) must necessarily entail a de novo trial. We cannot accept this contention. When a transfer is made u/s 528(2) for inquiry or trial by another

Magistrate, the procedure to be followed by the Magistrate, after such transfer, will be regulated by the provisions of the Code, one of such

provisions being Section 350. The Magistrate will have to consider in every case that comes to him whether a re-summoning of the witnesses

already examined by his predecessor will be necessary in the interests of justice. The mere use of the words inquiry or trial in Section 528(2)

cannot imply that a de novo trial should be held.

Quite recently in an unreported decision of Anantanarayanan J. (Criminal Revision Case No. 1480 of 1963), the view taken in In Re: Ganesa

Pillai and Another, was accepted on the principle of stare decisis. As we pointed out above that decision does not give full effect to the change

introduced by the amendment to 350. We are, therefore, unable, with respect, to accept either of those decisions referred to above, as correct.

Instead we would prefer to accept the view of Narasimhan C.J. in Rushi Naik Vs. The State, as it is in conformity with the provisions of the

amended Section 350.

Learned Counsel for the Petitioner then contended that the District Magistrate having once transferred the case to the file of the Sub-

Magistrate, Tiruvadanai, had become functus officio and had no power to transfer the case to another Magistrate. This argument is based on what

is called a strict construction of Section 528(2) , viz., in that, that provision confers power on the superior Magistrate to exercise the right of

transfer on a single occasion and no more. The short answer to this contention is Section 14 of the General Clauses Act which says:

Where, by any Central Act...made after the commencement of this Act, any power is conferred then, unless a different intention appears, that

power may be exercised from time to time as occasion requires.

The criminal revision case will be returned to Kailasam J., for final disposal.