In Re: Subbaraya Setty and Others

Somasundaram, J.—This is a revision against an order passed by the Sub-Magistrate of Kadiri in C. c. No. 2044 of 1952 under the

following circumstances. The prosecution witnesses were heard and a charge was framed against the accused. After the framing of the charge the

magistrate who heard the witnesses went on leave for two months. Another Magistrate succeeded him and before him an application u/s 350,

Criminal P. C. was filed for the resummoning of the prosecution witnesses who had already been examined for the purpose of rehearing them. But

before they could be heard the new Magistrate was transferred and he was succeeded by the original Magistrate who was reposted and as he had

heard the witnesses and had framed a charge against the accused he refused to resummon the witnesses who had already been summoned by the

interim Magistrate who was there for a short period. The question is whether his refusal to resummon the witnesses and rehear them is proper and

whether it in any way, offends the provisions of Section 350, Criminal P. C. or any other general principle governing the trial of cases under

Criminal P. C.

That the present case cannot fall under the provisions of Section 350, Criminal P. C. is clear because only when a Magistrate who has heard

and recorded the whole or any part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another Magistrate, the

provisions of Section 350, Criminal P. C. will apply. The Magistrate who was there during the absence on leave of the original Magistrate for a

short period did not hear any of the witnesses in the case. He only directed issue of summons to the witnesses and before he could take up the trial

of the case and could hear and record their evidence the first Magistrate who went on leave joined duty after the expiry of his leave and took

charge of the case. Under these circumstances it seems to me that the provisions of Section 350, Criminal P. C. in terms will not apply to this case.

The only other question is whether the order of a Magistrate who had directed issue of summons to the witnesses for the purpose of rehearing

them could be ignored by the succeeding Magistrate who has taken charge of the case and who has already heard the witnesses for the

prosecution and had framed charge against the accused. There are three decisions of our Hign Court in -- Sriranga Chettiar Vs. Subramania Asari,

, another in -- V. Govindan Nair and Others Vs. Kuttasseri Kunhi Krishnan Nair, & the third in -- ''Ramalingam Pillai v. Emperor'', AIR 1934

Mad 475 (C), which go to the extent of saying that where after, a trial was nearly completed after the hearing ''of the witnesses and the charges

had been framed against the accused, the Magistrate hearing the case was transferred and his successor ordered ''de novo'' trial and directed

summons to issue to the prosecution witnesses, whoever heard the case thereafter, even if it was the Magistrate who originally held the trial, must

hear the case ''de novo'' and that there had been no fresh examination of witnesses by the succeeding magistrate would not make any difference.

But in the case reported in -- ''Aynan Muthirian, In re'', 1928 Mad Cri C 74 (D), Devadoss j. has taken a different view and has held that the mere

fact of transfer of the case to a magistrate''s file, his having that case for a short period end then adjourning it to a certain date after directing issue

of summons at the request of the accused to some of the prosecution witnesses who had already been heard by a former magistrate would not

entitle an accused to insist upon a ''de novo trial so long as the Magistrate had not recorded any evidence and that it is only when the Magistrate

has heard or recorded any part of the evidence that it could be said that the transfer of the case from his file would entitle the accused to ask for a

''de novo'' trial.

4-5. In my opinion, the view held by Devadoss J. seems to be the correct one. The case has to be decided on the principle which governs the

provisions of Section 350, Criminal P. C. The object of Introducing this provision is to enable the new Magistrate to hear the witnesses afresh so

that he can watch their demeanour and when this has been done by the magistrate who went on leave in the present case, there seems to be no

valid reason for his re-examining these witnesses again. The order passed by the Magistrate in the circumstances of the present case is a correct

one.

As pointed out by Salmond on Jurisprudence (10th Edn. p. 499) a principle valid within certain limits becomes false when applied beyond those

limits. I think the maxim ''Cessante ratione legis cessat ipsa lex'' is applicable to the facts of this case. When the very basis of a rule does not exist

the rule itself ceases to exist. As pointed out earlier the very basis for resummoning of the witnesses is for the purpose of enabling the Magistrate to

watch their demeanour as he has not watched it before. But this purpose does not exist with the present Magistrate as he has already seen the

witnesses and recorded their evidence & has even framed charge against the accused. There is therefore, no need for the ''present Magistrate to

resummon the witnesses and rehear them. In this view, I uphold the order of the lower court and find that he need not resummon the witnesses for

the prosecution and rehear them. This criminal revision case is, therefore, dismissed.