J. N. Takru, J.
1. Bhoop Singh and Bhikambar have filed this revision against their conviction and sentence of three months R.I. and a fine of Rs. 50/- in default one month's R. I. each under Section 379 I P.C.
2. The brief facts necessary for the appreciation of the point, which is sufficient for the disposal of this revision, ate as follows:
The applicants were prosecuted under Section 427 I.P.C. for cutting the drop belonging to one Smt. Chameli and thereby causing her a loss of about Rs. 150/. Originally their trial took place before Sri K. C. Bansal, a Special Magistrate lab Class, Aligarh, who finding the case against them established convicted and sentenced them to a fine of Rs. 10/- each. On appeal the learned Addl, Sessions Judge opining that on the prosecution allegations a prima facie case under Section 392 or 379, I. P.C. was made out, act aside the judgment and order of the learned Magistrate and remanded the case to him for a fresh trial according to law, alter framing a proper charge. After the case was received on remand it was transferred to the court of Sri Nagar Singh, Special Magistrate 1st Class for trial. That learned Magistrate framed a charge under Section 392, I.P.C. but instead of proceeding with the recording of the prosecution evidence de novo he brought their earlier examinations-in-chief on the record, and allowed the applicants to cross-examine them. The applicants cross-examined those witnesses and also produced witnesses in their defence. The learned Magistrate after considering the entire evidence found the applicants guilty under Section 392, I.P.C., and he, therefore) convicted and sentenced them to six months' R. I. and a fine of B'. 50/. in default one month's R. I, each. On appeal the learned Additional Sessions Judge altered their conviction from Section 392, I.P.C. to Section 379, I.P.C. and also reduced their substantive imprisonment from six months R. I. each to three months' R. I. each, and with these alterations dismissed their appeal. Hence this revision.
3. On behalf of the applicants the main point urged before me was that as the procedure adopted by the learned Magistrate, i.e. of not examining the prosecution witnesses de novo, but in placing reliance upon their statements contained in their earlier examinations-in-chief, was illegal and has resulted in prejudice to the applicants, their conviction and sentence were unsustainable and were liable to be sat aside. After hearing the learned Counsel for the parties I am satisfied that this contention is well founded.
4. Now, the true legal scope and effect of an order of re-trial is laid down by the Supreme Court in the case of Ukha Kolhe v. The State of Maharashtra AIR 1988 SC 1581. In that case the Supreme Court after laying down the circumstances in which an order of re-trial is justified went on to say:
An order of re-trial wipes out from the record the earlier proceedings and exposes the person accused to another trial which affords the prosecution an opportunity to rectify the infirmities disclosed in the earlier trial.
5. It is clear from the observation contain' ed in the passage quoted above that when an order of re-trial is made the court to whom the order is directed, should proceed with the trial, so to say, with a clean slate after framing the new charges. The fresh recording of the examination-in chief in such a case, is no idle formality, more so when the learned Magistrate who is seized of the trial after remand is a different Magistrate, as by his not doing as he loses the inestimable advantage which he has over the appellate court, viz. of witching the demeanour of the prosecution witnesses during their examination-in-chief. There can thus be no manner of doubt that the learned magistrate by not recording the examinations, in-chief of the prosecution witnesses has committed a procedural illegality.
6. The next question that arises is whether as a result of the aforesaid illegality the applicants have been prejudiced in any way. In my opinion there can be no two opinions on that point. If, as observed by the Supreme Court in Ukha Kolhe AIB 1963 SC 1581, 'an order of retrial wipes out from the record the curlier proceedings', then the legal effect of such an order is that after it is made, there remains no examinations-in-chief of the prosecution witnesses on the record. In other words the position, as from the time that order is made, is that there ceases to exist any legal evidence on the record in support, of the prosecution case. And if that is so, then prejudice to the applicants is obvious because they have been convicted without there being any legal evidence against them. For all these reasons I am satisfied that the applicants must be held to have been prejudiced by the illegal procedure followed by the learned Magistrate.
7. The only other question that remains to be considered is whether the case is a fit one to be sent back for re-trial. on behalf of the applicants it was submitted that as the applicants have in various instalments undergone some imprisonment, and they hare already faced trials twice, the interests of justice do not require that, they should be made to fact the anxiety, not to say the expenses and harassment of a third trial. In my opinion this submission has substance. I, accordingly, accept it and set aside the conviction and sentences of the applicants and allow their revision. The applicants were granted bail for the pendency of their revision. They need not surrender to their bail bonds and are hereby discharged and the fine, if paid, shall be re. funded to them.