Narayana Reddi and Others vs Enumula Bojanna

Krishnan, J.—In this case an unfortunate error has crept in the procedure which has vitiated the trial. It resulted from the too frequent

transfers of the Magistrates concerned in this case. The first Magistrate who tried the case framed the charge when he was transferred. When

another Magistrate took up the case, an application was made to that Magistrate to order a trial de novo u/s 350, proviso (a) and that Magistrate

ordered a de novo, trial accordingly. But, before the trial began, that Magistrate was also transferred, and a third Magistrate, a new man, was

appointed as the Sub-Magistrate of the place. When he took up the case for trial, his attention was drawn to the order passed by his predecessor

granting a de novo trial ; but, instead of granting a de novo trial, what he did was merely to recall the prosecution witness and give leave to the

accused''s vakil to cross-examine those witnesses. This is not the meaning of "" de novo trial. "" De novo trial means a new trial from the very

beginning of the case. The object of granting a ''de novo trial is to enable the Magistrate who hears the case to see the way in which the witnesses

give evidence before him, to mark their demeanour, and thereby to be in a position to judge of their credibility. That object is lost if the witnesses

are not examined again but are only allowed to be cross-examined by the accused. Such a course is not in accordance with the provisions of

Section 350, and in two cases to which my attention has been drawn, their Lordships have set aside the trial and ordered a new trial under similar

circumstances. See Hnin Yin v. Than Pe (1916) 44 IC 337 and Sobh Nath Singh v. Emperor 12 CWN 138. In the latter case their Lordships of

the Calcutta High Court went to the length of holding that even if no objection was taken to the course adopted, of merely allowing the witnesses

to be cross-examined further, still the trial is vitiated. Here apparently the accused wanted to have the witnesses examined from the very first but

that was not allowed by the Magistrate. This error in the procedure has vitiated the trial. I am, therefore, constrained to set aside the convictions of

the accused in this case and direct them to be retried for the offences charged against them.

The papers will be sent to the Stationary Sub-Magistrate, Kadiri, for retrial of the case.