(1) This is a reference by the District Magistrate of West Godavari under the following circumstances. A charge sheet was filed against one Manikonda Satyanarayana by the Sub-Inspector of Railway Police, Rajamundry under S. 235, para (2) and S. 239, Indian Penal Code, before the Stationary Sub-Magistrate, Kovvur. The Stationary Sub-Magistrate took the case on file as a P. R. case and enquired into it. Finding that the evidence did not disclose an offence under S. 235(2), Indian Penal Code, he submitted the proceeding to the Sub-Divisional Magistrate, Kovvur under S. 346(1). Criminal P. C. The Sub-Divisional Magistrate acted on the evidence already recorded and framed a charge instead of having a de novo trial.
(2) It is pointed out by the District Magistrate taht this procedure is unwarranted and that a Magistrate acting under sub-s. (2) of S. 346, Criminal P. C., has to try the case from the beginning. It looks to me that the procedure adopted by the Sub-Divisional Magistrate is illegal. When sub-s. (2) speaks of the Magistrate trying the case himself, it means that the Magistrate should try it from the beginning. The general rule is that a Magistrate who tries a case should try it from the beginning, and the only exception to it is the one engrafted in S. 350, Criminal P. C. Since S. 350, Criminal P. C., has no application to this case, as the Magistrate is trying a case, transferred to him under S. 346(2), Criminal P.C., he has to try the case de novo.
(3) There is abudant authority for this position. 'In re, Ummar Hajee', AIR 1923 Mad 32 (A). a Bench of the Madras High Court remarked that exhibition of witnesses' deposition in the previous trial, without actually examining them de novo was irregular and the consent of the accused did not cure it. This ruling was followed by Krishnan J.-- 'In re, Chinna Venku Naidu', AIR 1923 Mad 327 (B) of the same Court who applied the principle to proceedings under S. 346, Criminal P. C., and held that it was not competent for a Magistrate acting under sub-s. (2) to S. 346, Criminal P. C. to hear arguments on the evidence taken by the Magistrate who transferred the case under S. 346, Cl. 1.
This view is shared by the Allahabad High Court in -- 'Panna Lal v. State', : AIR1952All657 (C). To the same effect is the decision of the Calcutta High Court in -- 'Sashti Gopal v. Haridas Bagdi', AIR 1938 Cal 415 (D). It is unnecessary to multiply citation. Suffice it to say that a Magistrate acting under S. 346(2) has to try the case from the beginning and he cannot act on the evidence already recorded, prior to the transfer of the case. The procedings adopted by the Sub-Divisional Magistrate is not one prescribed by the Code. The proceedings are, therefore, quashed and he is directed to hold the trial 'de novo'. The reference is answered accordingly.