1. In this case a prosecution was instituted against the two accused under Rule 81 (4), Defence of India Rules, 1939, before Khan Saheb S.K. Desai, who was then City Magistrate, First Class, Ahmedabad. After he had recorded some evidence, further hearing of the case was postponed, as the prosecution wanted to consider the question of its withdrawal. Eventually it was decided that the case should be proceeded with. In the meantime Khan Saheb S.K. Desai had retired, and the case came up for hearing before Mr. R.K. Desai. The accused then made a request that all the witnesses previously examined should be recalled and reheard, and this request was granted. A question then arose whether the evidence of these witnesses recorded before Khan Saheb S.K. Desai was or was not to be regarded as evidence in the case. The Magistrate heard the advocates on both sides and then passed an order in the following terms on 29th January 1948. 'I decide that the previous evidence stands and is not wiped out.' The accused applied in revision to the Sessions Judge, Ahmedabad. The Additional Sessions Judge, who heard the revision application, took the view that the evidence, which was recorded before Khan Saheb S.K. Desai, could not be treated as substantive evidence in the case. He has, therefore, made a reference to this Court recommending that the above order passed by the Magistrate should be set aside.
2. Sub-section (1) of Section 350, Criminal P. C., states as follows :
'Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in any 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 re-summon the witnesses and recommence the inquiry or trial.'
There are two provisos to this section, of which only proviso (a) is material for the purposes of this case, and this states that in any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them be re-summoned and reheard. Section 350, therefore, gives rights both to the Magistrate and to the accused. The Magistrate may proceed on the evidence already recorded by his predecessor, supplemented or not by evidence recorded by himself, or if he does not wish to decide the case on the evidence partly or wholly recorded by his predecessor, he may re-summon the witnesses and recommence the inquiry or trial. His right to proceed with the case on the evidence already recorded is, however, subject to the right of the accused to demand that all or some of the witnesses should be re summoned and reheard. It may be noted that whereas the section speaks of the Magistrate's recommencing the inquiry or trial, when he re-summons the witnesses, the words in the proviso only are that the witnesses or any of them may be re-summoned and reheard. The proviso does not contain the words 'and the trial re-commenced' after the words 're-summoned and reheard.' The accused's right is, therefore, only to have the witnesses recalled and reheard and not to demand an entirely de novo trial: see Tukaram v. King-Emperor I.L.R. (1936) Nag. 92 : A.I.R. 1936 Nag. 153 : 37 Cri. L.J. 983 and Muddu Veerappa, v. Emperor : AIR1935Mad318 . When, therefore, the accused claims the privilege of resummoning and rehearing the witnesses, what has taken place previously is not completely wiped out: see Venkatanarayana v. Emperor A. I. R. 1937 Mad. 448 :38 Cri. L. J. 537. The previous proceedings can, in any case, not be completely wiped out, when the accused, exercises his right of recalling the witnesses only with regard to some of them. The question as to what amounts to rehearing a witness has been considered in several cases and it has been held that the word 'reheard' in proviso (a) to Section 350 (1) means that the whole of the evidence of the witness is to be recorded again, i.e., he should be examined-in-chief, cross-examined and re-examined; see Kazi Mohamud Khan v. King Emperor 47 Cr.L.J. 240: A.I.R. 1945 Nag. 127 and Nathu v. King-Emperor 47 Cri L.J. 418 : A.I.R. 1945 Nag. 207. Merely exhibiting the previous deposition of a witness or reading it over to him and asking him some further questions does not amount to rehearing a witness, and is not a sufficient compliance with the requirements of proviso (a) to Sub-section (1) of Section 350. See Umar Hajee v. King-Emperor 46 Mad. 117 : A. I. R. 1923 Mad. 32 : 23 Cri. L. J. 748 and Mangal Singh v. Emperor A.I.R. 1920 Lah. 344 : 22 Cri. L. J. 119. In Kazi Mohamud Khan v. King Emperor 47 Cri L.J. 240 : A.I.R. 1945 Nag. 127, Hemeon J, stated (p. 242) :
'There must be a fresh start to enable the succeeding Magistrate to hear the connected narrative of the witnesses in examination-in chief and their replies when under the fire of cross-examination and to observe their demeanour throughout.'
3. As therefore the whole evidence of a witness who is re-summoned is to be recorded again, his previous deposition before another Magistrate cannot be treated as substantive evidence in the case, although it may be used for contradicting any fresh evidence given by him under Section 145, Evidence Act. The object with which the right has been given to the accused to demand that the witnesses previously examined should be re-called and reheard is that he may, if he considers that he would otherwise be prejudiced, ask the Magistrate to form his own opinion about the credibility of those witnesses, whom he regards as material, and to base his decision on their evidence as recorded before him. As observed by Burn J. in Mudda Veerappa v. Emperor : AIR1935Mad318 :
'All that he (the accused) can demand is that the witnesses whose evidence has already been recorded or any of them be summoned and reheard. This is apparently to ensure that the accused, if he wants it, may have the satisfaction of knowing that the Magistrate's decision will be based on the evidence of witnesses whom the Magistrate has himself seen.'
This right would be prejudicially affected if the previous evidence of a witness who, the accused demands, should be reheard, is treated as substantive evidence in the case.
4. We are, therefore, of the opinion that the previous evidence of a witness, who is resummoned and reheard under Sub-section (1) of Section 350, Criminal P. C., recorded before a Magistrate who has ceased to exercise jurisdiction in the case, cannot be treated as substantive evidence in the case. Where, however, the accused has exercised his option only with regard to some of the witnesses, the evidence previously recorded of those witnesses, in regard to whom the accused has not made a demand that they should be re summoned and reheard, will of course have to be treated as part of the evidence in the case, and the succeeding Magistrate would be competent to act on that evidence.
5. We, therefore, accept the reference, set aside the Magistrate's order of 1st January 1948 and direct that the Magistrate should proceed with the further trial of the case in the light of the observations made above.
6. There has been considerable delay in dealing with the revision application filed by the accused before the Sessions Court. We hope that such delays will be avoided in future. As there has been already considerable delay in the disposal of this case, we direct that the Magistrate should dispose of it as soon as possible.