Daroga Singh and Others vs King-Emperor

Bucknill, J.—This was an application in criminal revisional jurisdiction made by six men who have been convicted of various offences and sentenced to divers penalties to which I shall presently refer in some detail.

The history of this matter is slightly involved. It would appear that in 1925 these applicants were tried before a Magistrate of the First Class of Gaya; all the six applicants were convicted of an offence punishable under the provisions of Section 147, I.P.C. (riot) they were sentenced to pay a fine of Rs. 20, or in default of payment thereof to undergo rigorous imprisonment for 15 days. In addition, however, to these convictions and sentences the first and second applicants were also convicted of an offence punishable under the provisions of Section 323, I.P.C. (simple hurt); each of these applicants were sentenced to pay a fine of Rs. 20, in respect of this conviction. Further, the Applicants 1, 3 and 6 were also convicted of an offence punishable under the provisions of Section 380, I.P.C. (theft in dwelling house). Each of these three applicants was in respect of this offence sentenced to undergo rigorous imprisonment for 2 1/2 months. From these convictions and sentences the, applicants appealed to the Sessions Judge of Gaya. On the 15th January last the Sessions Judge ordered that the case should be remanded for enforcing the attendance and hearing the evidence of a number of witnesses for the defence; the learned Sessions Judge did not think that the Magistrate had given sufficient facilities to the applicants for enabling them to call the witnesses whom they desired to call on their behalf.

Now, when the matter went back to the trial Court, the Magistrate who had tried the case had been transferred and another Magistrate had taken his place. The applicants, therefore, purporting to proceed under the provisions of Section 350. of the Criminal Procedure Code, petitioned the Magistrate on the 25th February last that he should proceed to try the case de novo.

It will be observed that the material part of Section 350, Sub-section (1) reads thus:

Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an enquiry 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 re-summon the witnesses and re-commence the enquiry or trial:

Provided as follows:

(a) In any trial the accused may, when the second Magistrate commences his proceedings, demand the witnesses or any of them to be re-summoned and re-heard.

The Magistrate to whom the applicants petitioned for a new trial passed on the same date as that on which the petition was presented the following order:

The case has been remanded for recording further defence evidence and not for retrial. Rejected.

It is contended by the learned vakil for the applicants that this order was illegal and that in view of the Proviso (a) of Sub-section (1) of Section 350 of the Criminal P.C. it was incumbent upon the Magistrate, at the demand of the applicants, to try the case de novo. However the trial proceeded before this new Magistrate; I presume that he took the evidence which was proffered for the defence. The result was somewhat striking and as follows:

The six applicants were convicted of an offence punishable under the provisions of Section 147, I.P.C. (riot) and each sentenced to three months rigorous imprisonment. This sentence should be compared with the sentence of Rs. 20, fine imposed by the Magistrate who conducted the first trial. The Applicants Nos. 1 and 2 were also convicted of an offence punishable under the provisions of Section 323 (simple hurt), of the I.P.C., but no separate sentence was passed thereunder; whilst Applicants Nos. 1, 3 and 6 were again convicted of an offence punishable under the provisions of Section 380 of the I.P.C. (theft in dwelling house); but again no separate sentence was passed in connexion with this conviction. The general result, so far as I can see, of the second trial was that the Applicants 3 and 6 received a sentence of rigorous imprisonment of three months instead of 2i months, but were spared in a fine of Rs. 20. The Applicant No. 1 received a sentence of three months rigorous imprisonment instead of 2| months, but was spared two fines aggregating Rs. 40.

The Applicant No. 2 was spared two fines which in the aggregate amounted to Rs. 40, but received a sentence of three months rigorous imprisonment instead of those fines; whilst Applicants Nos. 4 and 5 received a sentence of three months rigorous imprisonment in lieu of a fine of Rs. 20. On the whole, therefore, it seems clear that the result of the second trial was that, in some cases very greatly and in some cases slightly, but in all cases more or less, these sentences were enhanced. The learned vakil for the applicants suggests that as a result of there not having been a de novo trial the upshot of the second trial indicates that the applicants were by the enhancement obviously greatly prejudiced. I have not been favoured with much authority as to whether, when a case is remanded for the taking of further evidence to a trial Court and where it is found that when the case returns to the trial Court the Magistrate or the officer trying the case has been, transferred arid a, new judicial officer has taken his place, the provisions of Section 350 immediately corner into operation. It would, however, appear that there is some authority for that proposition. In the case of Gomar Sirdar v. Queen-Empress [1898] 25 Cal. 863 it would, seem that where an interlocutory application made during the course of the trial for enforcing the attendance of certain witnesses had been granted and the case sent back for that purpose it was then found that the Magistrate who had so far proceeded with the case had beer transferred and a new Magistrate had taken his place, the accused persons had a right of calling to their aid the provise (a) of Sub-section (1) of Section 350 of the Criminal P.C. So, too, here, I am inclined; to think that probably the new Magistrate, whose duty was to take the further evidence was being an individual not the same as the Magistrate who had tried the case, bound to accede to the demand1 of the applicants to try the case de novo. However, even if that were not so, I think the fact that the result of the decision of the second Magistrate was to enhance the sentence does show that it is possible that the applicants were prejudiced by the fact that they did not have a new trial. This is particularly notice able in view of the fact that the case was sent back not for the calling of further prosecution evidence but simply for the calling of further witnesses on behalf of the defence. Under those circumstances, I have come to the conclusion that this application must be granted.

I should mention that from the decision of the Deputy Magistrate of Gaya of the 16th April the applicants appealed to the Sessions Judge of Gaya; he slightly, modified the decision of the Deputy. Magistrate with regard to the Applicants Nos. 4 and 5 reducing their sentences from three months rigorous imprisonment to that of 15 days rigorous imprisonment; but even that is an enhancement.

The convictions and sentences, therefore, of the Deputy Magistrate, of Gaya dated the 16th April 1926, as modified by the judgment of the Sessions-Judge of Gaya of the 4th May last are hereby quashed. The whole case against, the six applicants must be tried de novo and not by either of the Magistrates who have previously tried this case.