Isher Singh and others vs Nirmal Kaur

(1) This is a transfer application preferred by Isher Singh accused praying that the case pending before Mr. R. P. Rampal, Magistrate First Class,

Jammu, be transferred to the Court of some other Magistrate.

(2) The facts which gave rise to this application briefly stated are these. A complaint was brought by Mt. Nirmal Kaur under S. 376 of the Ranhir

Penal Code against Isher Singh in the Court of Mr. II. P. Rampal, Magistrate First class, Jammu. The Magistrate recorded the evidence and

framed the charge against the accused. The Magistrate was then transferred, and before the succeeding Magistrate the accused availed of the

benefit under S. 350 of the Criminal Procedure Code. The succeeding Magistrate started 'de novo' trial and issued summons to the witnesses. He

did not examine' any witness and the original Magistrate was retransferred to Jammu. An application was made by the complainant before the

Additional District Magistrate for the transfer of the case to Mr. R. P. Rampal Magistrate who1 originally tried the case on the ground that the case

will be expeditiously disposed of by him. The Additional District Magistrate transferred the case to Mr. R. P. Rampal Magistrate First Class who

originally was seized of the case. The accused has preferred an application in this: Court for the transfer of the case from the Court of Mr. Rampal

Magistrate First Class to the Court of some other Magistrate.

(3) On behalf of the applicant it is argued that the Additional District Magistrate should not have transferred the case to the Court of Mr. Rampal,

Magistrate first class, on the ground that the case would be expeditiously disposed of as the accused will not be able to avail o; the benefit of

S.350, Cr. P. C. It has been urged that the view taken by the Additional District Magistrate is erroneous inasmuch as the accused is not barred

from taking the benefit o: S. 350, Cr. P. C. in the Court of the present Magistrate.. In support of this contention reliance is placed on 'Ramalingam

v. Emperor', All (21) 1934 Mad 475 and 'Krishnaji v. Kashirao' AIR (13) 1926 Nag 220.

(4) In A I R (21) 1934 Mad. 475 it has been held that the grant of a 'de novo' trial by the successor of a Magistrate has the effect o wiping out the

prior proceedings and hence the case is transferred to the file of the old Magistrate even he cannot proceed with th1 trial from the point where he

had left it. For where on having taken charge the accused asked for a 'de novo' trial and the succeeding Magistrate issues summons to the.

prosecuting witnesses, this fact shows that the succeeding Magistrate has taken cognizance of the case am that whoever, is to hear the case, in

such circumstances must hear it 'de novo'. The same view is taken in the Nagpur case referred t above.

(5) In the present case the succeeding Magistrate asked the accused whether he would like to take the benefit of S. 350 Cr. P. C. or not The

accused having asked for 'de novo' trial the Magistrate issued summons to the witnesses but he did not examine any witness. The case has been

transferred to the original Magistrate and the question is whether the Magistrate can start the case from the point where he ha left it. In 'Ghaus

Mahomed v. Emperor', A I R (28) 1941 Lah 322, originally, most of the evidence in the case had been heard by the Magistrate D but the case

went to another Magistrate on account of the transfer of D to another District. Subsequently, however, it .was retransferred to D under the orders

of the High Court wit the object of saving the necessity of a 'de novo trial. The second Magistrate to whom the case had gone on the transfer of D

had not recorder any evidence at all. All that he had done WE to order a 'de novo' trial at the request of the accused; it was held that since the

successor c D had not heard or recorded any evidence i the case at all the condition laid down S. 350 (1) was not fulfilled and therefore proviso

(a) to S. 350 (1) was also not applicable In this case the Madras authority has been considered and the view taken by the Madras ruling has not

been followed. I fully agree with the view taken in the Lahore Case. The succeeding Magistrate not having recorded the evidence, the case is

transferred to the Magistrate who originally tried the case and the accused cannot ask for 'de novo' trial before .the origin Magistrate as that

Magistrate is not 'another Magistrate' as contemplated by ""S. 350 (1) C P. C.

(6) This application, is therefore rejected.