Ramaswami Naicker vs Rangaswami Naicker and Another

Yahya Ali, J.—This case was first tried by the Sub-Magistrate of Sattur, who after examining the witnesses for the prosecution framed a

charge against accused 1 and 2 under Sections 324 and 323 Indian Penal Code respectively on the 3rd May, 1945. Subsequently the Sub-

Divisional Magistrate of Sivakasi transferred the case to the file of the Sub-Magistrate of Virudhunagar. The case was taken on file on the 20th

June, 1945, and summons issued to the accused and notice to the complainant. On 27th July, 1945, the accused applied to the Magistrate for a de

novo trial and the application was granted and all the prosecution witnesses were resumnoned and reheard. The case stood posted on the 18th

September, 1945, for the examination of the medical witness who was the only remaining prosecution witness. On that day the complainant was

absent when called. The Sub-Magistrate of Virudhunagar discharged the accused and passed the following order:

The complainant not appearing this day, the date fixed for the hearing of the case, and it appearing that the alleged offence is one which may be

lawfully compounded, the Court directs u/s 259, Criminal Procedure Code, that the accused be discharged.

This application is to revise the abovementioned order of discharge passed by the Sub-Magistrate of Virudhunagar.

The question for decision is whether in a warrant case after a charge has been framed a Court to whom the case was transferred after the

framing of the charge can discharge an accused person when the complainant is not present. The contention of the respondent is that since there

has been a de novo trial granted in this case by the sub-Magistrate of Virudhunagar the charge framed by the Sub-Magistrate of Sattur should be

deemed to have been wiped out altogether by reason of Section 350, Criminal Procedure Code and that so long as there is no charge subsisting it

is open to the Court u/s 259, Criminal Procedure Code to discharge the accused if the complainant is absent. The view propounded by the

respondents'' advocate that the charge should be deemed to have been wiped out when a de novo trial is granted cannot be upheld. A Bench of

this Court, held in Tangaturi Sriramulu and Nalam Krishna Rao, and Others Vs. K. Veerasalingam, , on similar facts that where a Magistrate

framed charges against an accused person and was succeeded by another Magistrate who recommenced the case u/s 350, Criminal Procedure

Code the succeeding Magistrate cannot ignore the charge framed by his predecessor and his position is practically the same as that of his

predecessor would have been if, after framing a charge, he had heard further cross-examination of the prosecution witnesses u/s 256(1) and on a

consideration thereof became satisfied that the charge was not well founded. The reason of the rule was set out thus in the judgment of Ayling, J.

The only object of the substantive portion of Clause (1) of Section 350, seems to be to leave it to the discretion of the Magistrate to either act on

evidence recorded by his predecessor or to hear it over again for himself. The discretion is somewhat restricted by proviso (a) and proviso {b)

gives the superior Courts special powers of interference. Subject to these provisos the discretion is absolute. It is not clear why this should involve

the cancellation of the charge or the transformation of the proceedings from a '' trial'' back into an '' inquiry''.

This decision was followed in In re Ramanna (1932) 65 M.L.J. 791, by Curgenven, J., who held that in such circumstances it is not open to the

second Magistrate to ignore the charge a''nd he must proceed with the case on the footing that the charge has already been framed. The learned

Judge pointed out:

It is sometimes loosely described as a right to a de novo trial, but all that the provision allows is that he may demand that the witnesses or any of

them be resummoned and re-heard. When a charge has already been framed, this, as Ayling, J., remarks, makes the Magistrate''s position

practically the same as that of his predecessor would have been if, after framing a charge, he had heard further cross-examination of the

prosecution witnesses u/s 256(1). It follows that if the second Magistrate is not to frame a fresh charge but to act upon the charge already framed,

no occasion can arise for any cross-examination after the framing of the charge and in fact, the reasons for allowing such further cross-examination

cannot in the circumstances exist.

In an unreported judgment in Abdul Hameed Rowther and Ors. v. Mohamed Sali Rowther, (Cr. R.C. No. 498 of 1938-Cr. R.P. No. 463 of

1938), Lakshmana Rao, J., has followed the decision in Tangaturi Sriramulu and Nalam Krishna Rao, and Others Vs. K. Veerasalingam, .

The learned advocate for the respondent has drawn my attention to two other cases in Sardar Khan Sahib Vs. Athanlla, and Ramalingam Pillai,

In re (1934) 67 M.L.J. 293: ILR 57 Mad.1019. In neither of these two cases which were decisions of single Judges was the Bench decision in

Tangaturi Sriramulu and Nalam Krishna Rao, and Others Vs. K. Veerasalingam, , referred to and although it is held that on the granting of a de

novo trial prior proceedings are wiped out, there is no reference to the question that is at issue here whether the resummoning and re-hearing of

witnesses under proviso (a) to Section 350(1) of the Criminal Procedure Code at the instance of the accused has the effect of wiping out the

charge already framed against the accused. In this state of the decisions, I feel bound to give effect to the principle involved in the Bench decision.

The result is that in a warrant case where a charge has been framed the Magistrate is not competent in the absence of the complainant to pass an

order of discharge u/s 259, Criminal Procedure Code, ignoring the charge already framed. The order of discharge passed in this case, being

contrary to law, has to be set aside.

(This case having been set down for ""being mentioned"" the Court made the following order):

It has to be noticed that in Tangaturi Sriramulu and Nalam Krishna Rao, and Others Vs. K. Veerasalingam, , an order of discharge passed after

the charge had been framed was viewed as an order of acquittal. With regard to this aspect of the case, I have heard the parties once again as also

the learned Public Prosecutor. There can be no question that this Court has the power in a proceeding of this kind to set aside the order even if it

amounts to an order of acquittal. For the reasons that I have given in setting aside the order as one of discharge, I find that the order even viewed

as one of acquittal, cannot be upheld and it is therefore set aside.

The petition is allowed. The case will be restored to file and the Magistrate is directed to rehear it.