State vs Ghani Bandar and Others

S. Murtaza Fazl Ali, J.—This is a reference by the Additional District Magistrate, Anantna, recommending that an order passed by the trial

Magistrate dated 25-7-1958 acceding to the prayer of the accused for a de novo trial may be set aside.

The reference arises in the following circumstances:

The non-applicants Ghani Bandar and others were being prosecuted for an offence uncles Sections 147, 447 R. P. C. before the Munsiff

Magistrate, Anantnag who after examining some witnesses was transferred to some other place and was succeeded by the present trial Magistrate.

When the case was taken by the succeeding Magistrate the accused prayed that the Magistrate should resummon the witnesses. The Magistrate

being under the impression that the accused had a right to claim a de novo trial under the provisions of Section 350, Clause (1), Proviso (a) of the

Code of Criminal Procedure acceded to the prayer of the accused, and directed the witnesses to be recommended. This order of the Magistrate is

the subject-matter of the present reference. I might also mention that it is not disputed that the case before the Magistral was a warrant case and

that before the order impugned was passed charge had not been framed under the provisions of Section 254 of the Code of Criminal Procedure

The case was first heard by a Division Bench of this Court but in view of conflicting authorities of the various High Courts in India on the point

involved it has been referred to us for an authoritative pronouncement on the question so far as this Court is concerned.

The point involved in the present case is as to whether the proceedings in a warrant case before _the framing of a charge amount to an 'inquiry'

only or they amount to a trial as contemplated by Section 350, Clause (1), proviso (a). Cr.PC, so as to enable the accused to exercise his right or

claiming a de novo trial. The learned Additional District Magistrate is of the view that the proceedings in the present case have not so far ripened

into a trial and hence proviso (a) of Clause (1) of Section 350, Cr.PC, does not apply and consequently the Magistrate had no jurisdiction to

accede to the prayer of the accused for resummoning the-witnesses. I must confess at the very outset that the question involved in the present case

is not free from difficulty and there is a good deal of divergence of judicial opinions on this question. Before, however, I refer to the various

authorities on the Question I would like to give my own reasons ten taking the view that I wish to take in the Present case. The relevant portion of

Section 350, Cr.PC, runs as follows:

Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or trial, ceases to exercise

jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on

the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may resunimon the

witnesses and recommence the inquiry or trial : Provided as follows:

(a) in any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them be re-y

summoned and re-heard.

It is manifest from an analysis of this Section that where a trying Magistrate is succeeded by another Magistrate, the succeeding Magistrate may in

his own discretion resummon the witnesses and recommence the inquiry or trial. Where the Magistrate has to exercise such a discretion it is not

limited merely to a trial but it can be exercised even in ease of proceedings which amount to an inquiry, but where the discretion is not exercised by

the Court itself but the accused wants to re-summon the witnesses he can do so only if the proceedings are a trial and not otherwise.

In other words, the Section fully consistent with the scheme of the Code of Criminal Procedure draws a clear distinction between an 'inquiry' and a

trial Thus the words ""inquiry or a trial"" as used in this Section have been used not in a general sense but in a technical sense. In order, therefore, to

appreciate as to whether proceedings in a warrant case amount to an inquiry or a trial we must go hack initially to the question as to how have

these terms been defined or indicated in the provisions of the Code of Criminal Procedure. Section t Clause (k) defines 'inquiry' as follows:

'inquiry' includes every inquiry other than a trial conducted under this Code by a Magistrate or Court

It is, therefore, clear that an 'inquiry' under the Criminal Procedure Code is a proceeding other than a trial'. The Section clearly excludes a trial

from f the ambit of an inquiry. In ordinary parlance trial would amount to examination and determination of a cause by a judicial tribunal or, to put

more concretely, trial connotes determination of the guilt or innocence of the accused by a Court. Thus a trial must either result in conviction or

acquittal. The theory of discharge seems to be in my opinion beyond the scope of a trial and such a proceeding comes into being before the

beginning of a trial. Now the serious question for us to determine is as to when a trial commences according to the provisions of the Code of

Criminal Procedure. One view seems to be that trial commences when the accused is called on with the Magistrate on the Bench and the accused

in the dock and lawyers for the prosecution and the accused are present in Court for hearing of the case.

This view was expressed by the Calcutta High Court in the decision reported in Gomer Sirdha v. Queen Empress ILR Cal 863 a decision to which

I will have to refer in detail a little later. Another view, however, seems to be that trial will not begin, until after the accused is called upon to meet

the charge framed against him, that is to-say, trial is a proceeding which can end in conviction or acquittal and all proceedings anterior to it must be

regarded as inquiry. This view was-taken by a Full Bench of the Calcutta High Court-in a decision reported in Hari Dass Sanyal v. Sritulla ILR Cal

608 and was later on followed by another Division Bench of the Patna High Court in a case reported in The State of Bombay Vs. Nilkanth

Shripad Bhave and Another, . The same view was further taken. by a Full Bench of the Rangoon High Court it Emperor y. Maung Ba Them AIR

1931 Rang 225. An examination of the previous history of the Code of Criminal Procedure shows that in the-Code of 1872 both 'inquiry' and

'trial' were defined and 'trial' was defined as proceedings taken ii-Court after a charge had been drawn.

This definition, however, seems to have been-dropped in the Code of 1882 as also in the Code-of 1898 which is still continuing after a few

subsequent amendments. The mere fact, however, that"" the definition has been dropped does not conclusively show that the Legislature meant to

enlarge-the scope of trial. In ILR Cal 608 majority Judges constituting the Full Bench held that art inquiry did not include a trial and, therefore, the-

Legislature incorporated this decision by amending Section 4(K) and excluding trial from the ambit of inquiry. In this connection I might quote the

following observations made by a Division Bench'-of the Madhya Bharat High Court in case The State of Bombay Vs. Nilkanth Shripad Bhave

and Another, :

The Legislature made it clear in the Code o§ 1898 that the view taken by the Calcutta High. Court was correct. As has been seen the Code of

1872 expressly laid down that trial' meant only the-proceedings taken in court after a charge had been-drawn up. The fact that this definition was-

dropped and not reproduced in the Code of 1882, need not lead to the inference that there was an intention to give the term 'trial' a connotation

different from what it bore in the Code of 1872.

It is, therefore, clear that the Legislature has draw, a clear distinction between an inquiry and a trial. These two expressions are mutually exclusive.

It, is also clear to me that wherever the Legislature has used the expression 'inquiry' the conception °t 'trial' has been completely excluded. It is

well settled that where the Legislature uses a particular-expression at various places the expression must be understood in the same sense and

cannot receive-different meaning in absence of a very strong reason' to the contrary. In this connection it is pertinent to note that tinder Section

436, Cr.PC, the Legislature has invested the District Magistrate _nr the-Sessions Judge with powers to direct further inquiry-into the case of a

person who has been discharged The proviso to Section 436, Cr.PC, runs as follows :

Provided that no Court shall make any direction under this Section for inquiry into the case of any person who has been discharged unless such

person has had an opportunity of showing cause-why such direction should not be made.

It will be seen that in this proviso which is meant to cover a specific case of discharge in a warrant case the word 'inquiry' has been used. If,

therefore, the Legislature intended that such a proceeding amounts to a trial then it would really be inconsistent with the intention of the Legislature

to use the word 'inquiry' in the aforesaid proviso. It is well settled that Section 436 refers only to inquiries, and not to trials, because in the very

definition of 'inquiry' as referred to above 'trial' is clearly excluded. I am fully supported in my view by Full Bench decision of the Rangoon High

Court. in the case AIR 1931 Rang 225 where that Lordships of the Rangoon High Court observed as follows:

In construing these Sections it must steadily be borne in mind that Section 436 has no application to trials, but relates to proceedings antecedent

and .preliminary to a trial, the object of which is to .ascertain whether or not a trial shall take place.

Tile same line of reasoning was adopted by another Full Bench decision of the Madras High Court in case Narayanaswami Naidu In re ILR Mad

220 .at pages 224 and 234 and their Lordships held that in a warrant case trial only begins after the 'framing of charge. The same view was taken

by another Full Bench decision of the Allahabad High Court in case Queen Empress v. Chotu ILR All 52. I find myself in complete agreement with

this view which seems to be fully consistent with the scheme of the Code of Criminal Procedure in drawing a clear distinction between an 'inquiry

and a 'trial'.

Another reason why in my opinion the proceeding upto the framing of charge in a warrant case must be held to be an inquiry is the fact that the

Legislature itself makes certain distinctions between the two stages of proceedings in a warrant case namely, one leading upto the framing of :the

charge and the other which proceeds thereafter, in the first place, before the framing of a charge the Legislature has not given the accused .a

specific statutory right to cross-examine the witnesses although the accused has a right to cross-examine the witnesses as a matter of prudence and

practice and in order to give him an opportunity of showing that no prima facie case has been made out against him. I am fortified in my view by a

'Division Bench decision of the Patna High Court in case The State of Bombay Vs. Nilkanth Shripad Bhave and Another, where' after reviewing a

large number of authorities that Lordships of the Patna High Court observed as follows:

Reading the relevant Sections of Chaps. 18 and 21 in juxta-position it is clear that Section 252 does not give the accused a statutory right, and the

opportunity of cross-examination before charge, which in practice he is given, Ls given as a matter of interpretation and on the application of the

principles that the accused must get every reasonable opportunity of establishing his innocence.

The sane view was taken in The State of Bombay Vs. Nilkanth Shripad Bhave and Another, and Emperor v. C. A. Mathews AIR 192 Cal 822.

On the other hand, after the charge is framed the accused is given by the Legislature a clear right to cross-examine the witnesses u/s 256, Cr.PC.

This distinction clearly shows that the Legislature did not intend proceedings in a warrant case before that 'framing of charge to amount to 'trial'.

Again, it seems to me that whereas in proceedings before the framing of charge the Legislature provides that where the case has been instituted

upon a complaint the accused can be discharged if the complainant is absent but this can be done only at any time before the charge has been

framed and not thereafter. Section 259 of the Code of Criminal Procedure runs as follows:

When the proceedings have been instituted upon complaint and upon any day fixed for the 'hearing of the case the complainant is absent, and the

offence may be lawfully compounded, or is not a cognizable offence, the Magistrate may, in his discretion notwithstanding anything hereinbefore

contained, at any time before the charge has been framed, discharge the accused

The underlying idea behind this Section is that as long as the proceedings amount to ""inquiry"", the accused can be discharged due to the negligence

of the complainant but this indulgence is not given to him when once the trial starts, because, as I have already said, when once the trial starts it

must end in conviction or acquittal and must be carried to its logical end. There can be no question of discharge in a trial. In this connection I would

quote the following observations of a Division Bench decision of the Patna High Court in case The State of Bombay Vs. Nilkanth Shripad Bhave

and Another, :

In other words a trial is a judicial proceeding which ends in conviction or acquittal. All other proceedings arc mere enquiries.

Further u/s 257, Cr. P.C. the accused has been given a further right to resumrnon any witness for the purpose of cross-examination under

certain, circumstances but this right is not given to the accused before the framing of charge. Thus Sections 254 to 257 of the Code of Criminal

Procedure contain as it were the sine qua non of a trial and the necessary incidents with which a trial is replete.

A close examination of Sections 251 to 253, Cr. P.C. clearly shows that the Legislature has not -used the expression 'trial' in any of these

Sections but has referred to proceedings contemplated by Sections 252 and 253 as merely a case. The word 'trial' is conspicuously absent from

the provisions narrating the proceedings leading upto the framing of the charge. For the first time in Section 254, Cr.PC., the words used are

which such Magistrate is competent to try"" which means that the trial would only begin after the charge is framed. On the other hand, in all the

provisions after the trial has begun namely, Sections 256 and 257 the word 'trial' has been used freely. In this connection the words 'claims to be

tried' as used in Section 256 clearly indicate the beginning of the trial from that stage and f this is the view that has been taken by a Division Bench

decision of the Rajasthan High Court in case The State of Bombay Vs. Nilkanth Shripad Bhave and Another, , where that Lordships of the

Raiasthan High, Court held that trial starts only after the framing of charge mainly on the basis of these words in Section 256, Cr.PC. The relevant

observations of their Lordships of the Rajasthan High Court in this connection are as follows:

In warrant case I am inclined to think that the trial can be said to begin only after the charge is framed. According to Section 256, which occurs in

chapter on 'Trial of Warrant Cases': it is only after the framing of the charge that the accused can claim to be tried.

Lastly, it seems to me, that an examination of the provisions of Section 403. Cr. P.C. also throws some light on the question. The words used in

Section 403, Clause (1) are 'a person who has once been tried by a Court of competent jurisdiction' indicating clearly that the Section applies only

to trials and not to enquiries. The Explanation to Section 403 runs as follows:

The dismissal of a complaint, the stopping of proceedings u/s 249, the discharge of the accused or any entry made upon a charge u/s 273, is not an

acquittal for the purposes of this Section.

The explanation, therefore, clearly excludes discharge of the accused from the ambit of a trial. It is further clear that when the accused is

discharged in a warrant case u/s 253 he cannot avail of the benefit of Section 403, Cr.PC. Section 403 which is a specific Section embodying the

principle of autrefois acquit and relates only to trials clearly excludes proceedings leading upto the framing of charge. The logical inference from this

is that such a proceeding cannot amount to 'trial'.

Finally a careful analysis of the provisions relating to the commitment enquiries and sessions trials clearly reveals the test which the Legislature

has laid down in'distinguishing 'inquiry' from 'trial'. Chapter XVIII has been clearly described as an inquiry' by the Legislature and such an inquiry

ends either with discharge u/s 209 or with the framing of charge u/s 210 and thereafter the trial starts. In my opinion while the Legislature has

splitted up the two proceedings in cases exclusively triable by Sessions one being inquiry and the other trial â€" these two stages seem to have

been amalgamated and consolidated into one in the trial of warrant cases provided for in Chapter XXI of the Code of Criminal Procedure. In other

words, proceedings leading upto the framing of charge is inquiry' and bears all the incidents of an inquiry whereas proceedings after the framing of

charge is 'trial' containing insignia of a trial, namely, the right to cross-examine, the right to give defence and the question of conviction or acquittal,

as the case may be. In this connection I am fully fortified by the observations of the Full Bench of the Allahabad High Court constituting of five

Judges in case ILR All 52 (FB). The observations of their Lordships of the Allahabad High Court are as follows:

We think that in determining the effect to be given t0 Section 437, it is important to bear in mind the distinction obviously recognized in the Code

between the preliminary p-oceedings in warrant cases that precede the drawing up of a charge which may be terminated by an order of discharge

that does not amount to an acquittal, nor bar a second prosecution at the instance of the complainant, and those that ensue after charge framed and

plea pleaded, which can only be concluded by an acquittal or a conviction, whereof the accused can altor-w_wards avail himself u/s 403 of the

Code. So long as the case continues in the stage of inquiry, the duty of the Magistrate is confined to ascertaining whether there is anything that the

person accused, ought to be cabled upon to answer. When once the charge has been framed and a plea has been taken, the inquiry is turned into a

trial, and the evidence in support of the charge already recorded becomes evidence on that trial, subject to the right of the accused as declared in

Sections 25G and 257.

The cumulative effect, therefore, of the reasons given by me above is no doubt that trial in a warrant case can be said to commence only alter

the charge is actually framed and the accused is called upon to answer the charge. In summons cases, however, it is obvious that the trial

commences when the accused is brought before the Court and when the particulars of the offence are explained to him as mentioned in Section

242, Cr. P.C. It is relevant to note that as no charge is framed in summons cases the provision relating to stating substance of accusation really

takes place of a charge and, therefore, the trial starts at that stage. I may further point out that as the trial starts from the very inception in summons

cases the Legislature has not made any provisions for the discharge of the accused and where the complainant is absent on the date of hearing the

Court has been given the power to acquit the accused, whereas in. warrant cases when the complainant in a complaint case does not appear until

the framing of a charge the accused can only be discharged.

This circumstance also supports the view that I have taken,

1 laving regard, therefore, to the view that I 'nave taken in this case that trial starts only after the charge is framed and the accused is called

upon to answer the charge, it follows that proviso (a) to Clause (1) of Section 350 would not apply to proceedings before the framing of the

charge and to the proceedings in the case before us. The view that I have taken in this case is amply supported by a large number of decisions of

the various High Courts in India. A Full Be:;ch decision of the Madras High Court reported in ILR Mad 220 has taken this view and their

Lordships observed in that case as follows:

'Inquiry' is now defined in Section 4 (k) as including 'every inquiry other than a trial conducted under this Code by a Magistrate or Court', Trial

begins when the accused is charged and called on to answer and then the question before the Court is whether the accused to be acquitted or

convicted and not whether the complaint is to be dismissed or the accused discharged.

In the case before their Lordships of the Madras High Court the question was regarding the scope of Section 436, Cr. P.C. in a case where the

accused person was discharged by the Magistrate u/s 253. If the proceedings before the framing of a charge were held to be 'trial' then the

Sessions Tudge would have no power to hold a further inquiry. Their Lordships after a careful consideration of the matter observed as mentioned

above. This case was followed by a later decision of the Madras High Court in Sriramulu v. Krishna Row ILR Mad 585 : AIR 1915 Mad 23 and

again in Rama-nathan Chettiar v. King Emperor AIR 1923 Mad 660. The Madras High Court, therefore, has consistently been taking the view

that 'trial' starts only after the framing of charge. To the same effect is a Division Bench decision of the Madhya Bharat High Court reported in AIR

1953 M B 1. The same view was taken by another decision of the Nagpur High Court reported in Tukaram v. Emperor AIR 1936 Nag 153.

The Rajastban High Court also in The State of Bombay Vs. Nilkanth Shripad Bhave and Another, took the same view. The Allahabad High Court

also expressed the same view in a Full Bench decision reported in ILR All 52. Finally a Single Bench of this Court in Criminal Revn. No. 81 of

2011 D/- 23-5-1955 (J and. K) took the same view relying upon the Madras authorities and we find ourselves in complete agreement with the

view expressed by the learned Chief Justice in that case. The view that has been taken in this case also receives great support from a Full Bench

decision of the Rangoon High Court reported in AIR 1931 Rang 225 and a Division Bench decision of the Patna High Court reported in The State

of Bombay Vs. Nilkanth Shripad Bhave and Another, . So far as the Calcutta High Court is concerned Full Bench decision of that Court in ILR

Cal 608 took, more or less, the same view and which view, as I have already pointed out was accepted by the Legislature in 1892 by amending

definition of the word 'inquiry' so as to exclude 'trial'. Is that case Wilson J. with whom three Judges agreed observed as follows:

The definition in the interpretation clause is very wide and in some Sections of the Act it certainly includes trial. If that meaning were adopted here,

it might be that Section 437 would authorise a Sessions Judge or District Magistrate, not only to order further enquiry preliminary to trial, but also

to order a charge to be framed and the trial of that charge to proceed. The word is often, however, used in a more specific sense, to denote the

enquiry before a Magistrate preliminary to trial, which regularly results in a charge or a discharge. I am not prepared to adopt any but the narrower

sense in the present Section. I, therefore respectfully agree with the view taken in the decision mentioned above on the question at issue.

I am, however, aware that some Courts in India have taken a contrary view and I would now try to review these decisions which have been

cited before us by the learned Counsel appearing against the reference. In the first place, great reliance was placed on a Division Bench decision of

the Calcutta High Court in case ILR Cal 863. In that case their Lordships of Calcutta High Court no doubt observed that 'trial' commences when

the C1se was called on with the 11agistrate on the Bench and the accused in the dock. Their Lordships do not, however, seem to have entered

into a complete discussion of the question and their attention was not drawn to the Full Bench decision reported in ILR Cal 608 where majority of

the Judges Constituting the Full Bench had taken a contrary view. With very great respects to their Lordships I am unable to agree with the view

expressed by them.

Another decision which takes a contrary view and which has been relied upon by counsel for the accused is Dagdu Govindset v. Punja Vedu

Wani AIR 1937 Bom 55. In this case also their Lordships of the Bombay High Court do not seem to have entered into a detailed discussion of the

subject and they have not considered the variables aspects which I have pointed out in an earlier part of the judgment. Moreover, the decision

given by their Lordships rests mainly on their experience and on the practice which prevailed in the Bombay Presidency. In this case Broomfield J.

observed as follows:

But according to my experience of the administration of criminal justice in this Presidency, which is not inconsiderable, the Courts have always,

accepted the definition of trial which has been given in ILR Cal 863. th.'1t is to say, 'trial' has always been understood t,p mean the proceeding

which commences when the case is called on with the Magistrate on the Bench. the accused in the dock and the representatives of the prosecution

and defence, if the accused be defended. Present in Court for the hearing of the case.

Their Lordships of the Bombay High Court dissented from the Madras view but have not given any cogent reasons for doing so. This case was

followed in a later decision of the Bombay High Court in Ramchandra Narhar v. Emperor AIR 1944 Bom 14, where also their Lordships of the

Bombay High Court took the same view but at the same time realised the force of the reasoning adopted by the Judges of the Madras High Court.

Their Lord ships, however did not pursue the matter further because they bund themselves bound by the earlier decision of the Bombay High

Court. In this connection Beaumont C. J. observed as follows:

The view. which the Madras High Court has taken, in ILR Mad 719 : AIR 1923 Mad 660 is that a trial only commences when the Magistrate

frames a chare. and the accused claims to be tried u/s 256. and there is no doubt a good deal to he said for that view. On the other hand. the

Lahore High Court in Sahib Din v. Emperor. ILR Lah 115 : AIR 1922 Lah 49 and the Court of the Judicial Commissioner in Sind in Lahh Singh v.

Emperor. AIR 1934 Sind 106 have taken the opposite view. We are told by counsel that the matter has not been considered by this Court. But in

plaint of fact there is a decision of this Court directly in point in The State of Bombay Vs. Nilkanth Shripad Bhave and Another, ....

Whatever view we might have taken had the case been free from authority, I think WE' ought to follow The State of Bombay Vs. Nilkanth Shripad

Bhave and Another,

It is, therefore. clear that none of these two Bombay judgment are based on an independent consideration of the question and we express our most

respectful dissent from these two decisions.

Reliance was also placed on a Division Bench decision of the Lahore High Court in case AIR 1922 Lah 49. In this case also it appears that

their Lordships of the Lahore High Court noticed decisions which took a contrary view but they explained them away on the ground that these

decisions referred to Section 436 without, however dwelling on the reasoning given by those decisions. As I have already pointed out, provisions

of Section 436, Cr.PC., are of great importance in judging the I import of an ""inquiry"" and their Lordships of the Lahore High Court have not

considered this aspect. Nor the attention of their Lordships seems to have been drawn to the various aspects to which I have referred in an earlier

part of the judgment. With great respects for the reasons given by the learned Judges in that case we are unable to follow that decision.

The last case relied upon by counsel appearing against the reference is a Division Bench decision of the Sind Judicial Commissioner's Court

AIR 1934 Sind 106. A careful examination of this decision shows that one of the main reasons which led their Lordships to hold that 'trial' starts

from the stage mentioned in Section 252 was the language of Section 251 which runs as follows:

The following procedure shall be observed to the trial of warrant cases.

Their Lordships laid great stress on the expression 't15a1' appearing in Section 251. This in my opinion is not conclusive on the matter. because

the word 'trial' in that Section has been used rather loosely and the word had to be so used, because the Section deals with the whole procedure

which is to happen from the commencement down to conviction and there is no doubt that at a certain stage it has to amount to a trial. In this

connection I would refer to the observations made by Ottar J. in AIR 1931 Rang 225 which are as follows:

The word 'trial' appears in Sections 241 and 251 which refer to the procedure to be observed 'in the trial of summons cases and waning cases

respectively'. These Sections deal with the whole procedure in such cases, and include provision for what is to happen from the commencement

down to conviction Or acquittal.

I find myself in complete agreement with the view expressed by Ottar J. in that case. Another reason given by the Sind Court is that after the

change introduced in the Code of IB82 by dropping definition of the word 'trial' the scope of Section 350 was enlarged. I am. however. und his to

agree with this reasoning. The mere fact that the definition of the expression 'trial' was dropped by the Act of IB82 does not show that the

Legislature intended that 'trial' should he understood in a different sense. would prefer the reasonin given by the Madhya Bharat High Court in The

State of Bombay Vs. Nilkanth Shripad Bhave and Another, which I have already quoted else where. Their Lordships further held that by the

amendment of 1892 it was donhtfuI if the intention was to give effect to the judgment of Wilson J. in the case reported in ILR Cal (JOB (FB)

The only reason given for this by their Lordships is that the Legislature has not reverted to the old definition of 'trial' This reasoning also dops not

appeal to me. Moreover, their Lordships of the Sind Judicial Commissioner's Court did not. consider the various aspects to which I have adverted

in an earlier part of the judgment. Finally their Lordships of the' Sind Chief Commissioner's Court do nnt seem tD have attached any importance to

the words 'claims to be tried' appearing in Section 256 which support the view taken bv me to a great extent. For these reasons WE' express our

most respectful dissent from this decision also..

The position therefore is that while there are four Full Bench decisions namely, the Madras, the Allahabad, the Calcutta and the Rangoon High

Courts in support of the view that I have taken in this case, there is no Full Bench decision which takes a contrary view. The other decisions which

I have already referred to above either do not deal with the question extensively or have adopted a line of reasoning which, in my opinion, seems to

be inconsistent with the scheme and purport of the Code of Criminal Procedure,

On a careful consideration, therefore, of. the authorities and analysis of the various provisions of the Code I am of the opinion that 'trial' in a

warrant case commences only when the charge is read to the accused and he is called upon to answer the charge and until the proceedings have

reached this stage proviso (a) to Clause (l) of Section 350 does not come into play and the accused has no right to ask the Court to resuming the

witnesses. In the present case, it appears, the case is yet at an inquiry stage, and therefore, the Magistrate was not right in acceding to the prayer of

the accused. Had the Magistrate exercised his own discretion u/s 350, Clause (1) in resummoning the witnesses the matter would have been

different. This the Magistrate has not done, but it is still open to him to apply his mind to this question.

For the reasons given above the reference is accepted, the order of the Magistrate dated 25-7-1958 is set aside and the case is sent back to

the Magistrate who will now proceed with the case from the stage it was left by his predecessor.

Janki Nath Wazir, C.J.

I agree.

K.V. Gopalakrishnan Nair, J.

I agree.