Sudhir Kumar Gose vs The State

Bhattacharya, J.—The short point that falls for consideration in this revisional application is whether Sub-section (2) of Section 350 of the Code of Criminal Procedure will or will not operate when the Magistrate to whom a case is transferred in accordance with Section 346 of the Code of Criminal Procedure chooses to proceed under the same sections of the Indian Penal Code against the accused persons.

Originally the case (under Sections 147 and 323, I.P.C.) was transferred to a learned Magistrate with third class powers. Later on, on the ground that an offence u/s 427 might also have to be tried, recourse was taken to Section 346 of the Code of Criminal Procedure. Subsequently the case was transferred to the file of a Magistrate with second class powers. The latter Magistrate accepted the evidence so far recorded by his predecessor (with third class powers), took some additional evidence and convicted the accused persons (seven in number) u/s 147 of the Indian Penal Code and Section 323 of the Indian Penal Code.

The main objection taken by Mr. Banerjee is that the learned Magistrate who tried the case finally should have recorded evidence de novo instead of making use of the evidence recorded by the previous Magistrate who had only third class powers. Under the amended Section 350, Code of Criminal Procedure, ordinarily a Magistrate may act on the evidence recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself. But Sub-section (2) of Section 350 states:

Nothing in this section applies to a case in which proceedings have been stayed u/s 346 * * * *.

Under Sub-section (2) the learned Magistrate could not have fallen back on the evidence recorded by his predecessor. When the case was transferred to him on the ground that his predecessor had not adequate powers to try the offences, the second Magistrate could have no basis for thinking that the charge or charges in his Court would be the same as the charge or charges which fell, to be considered by his predecessor. The presumption, if any, would be just the opposite. It is an accident that the second Magistrate chose to proceed under the old sections instead of any higher section. Consequently, initially the learned Magistrate should not have decided to rely on the evidence recorded by his predecessor. If any higher section was referred to by him, certainly the evidence recorded by his predecessor would be worth little. The mere fact that on ultimate analysis the learned Magistrate chose to proceed under the old sections instead of any higher one would not confer on him any right initially to proceed on the evidence recorded by his predecessor. Sub-section (2), as it stands, clearly lays down an exception to Sub-section (1). Consequently, the learned Magistrate who ultimately tried the case should not have relied on the evidence recorded by his predecessor, no matter whether ultimately the same sections were resorted to.

In the circumstances, it is not necessary to refer to other points of law referred by Mr. Banerjee, e.g., the common intention u/s 147 of the Indian Penal Code.

In the result the Rule is made absolute. The conviction and the sentence of the accused Petitioners are set aside. The fine, if paid, should be refunded immediately. There should be a retrial. The learned Magistrate or any other Magistrate to whom the case may be transferred by the Subdivisional Magistrate will hear the case de novo according to law.