1. This is a criminal reference by Mr. K.N. Wanchoo, the Sessions Judge of Benareg, recommending that the order of a Second Class Magistrate, Mr. Asthana, should be set aside. The facts of the case are that Shyama Pado Deb was prosecuted under B. 406, Penal Code, in the Court of Mr. Asthana in October 1937 and the prosecution witnesses were examined and the statement of the accused was recorded and a charge was framed under Section 406, Penal Code, and the cross-examination of the prosecution witnesses after the charge sheet was taken. The 10th October 1937 was fixed for the defence. At that stage, Mr. Asthana was transferred from the district and the case was transferred to another Magistrate, Mr. Rana, for trial. No further proceedings took place in the Court of Mr. Rana and Mr. Asthana was re-posted to the district and the case was retransferred to his file and came before him on 24th January 1938 and he fixed 4th February 1938 for the production of the defence. On that date the defence asked for a postponement which was granted. On 15th February 1938, the accused applied to Mr. Asthana that the case should be heard de novo under 'Section 350, Clause 2, Criminal P.C.,' as the learned Sessions Judge states. By this, apparently, he means under Section 350(3). The sub-sections of the Code are referred to as 'sub-sections' and not as 'clauses' and it is only in the case of a Bill that a reference is made to clauses. Mr. Asthana rejected the application. The learned Sessions Judge considers that the Magistrate is bound to grant the application and this view has been argued before me by Mr. Saila Nath Mukerji. The argument is that Sub-section (3) of Section 350 applies which states:
When a case is transferred under the provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter within the meaning of sub-section (1).
2. Now this sub-section merely states that in the case of a transfer the former Magistrate shall be deemed to cease to exercise jurisdiction and to be succeeded by the latter. Now turning to sub-section (1) it is stated:
Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in any enquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate....
3. Now there are two Magistrates contrasted by this sub-section. The first Magistrate has two qualifications : (1) he must have heard and recorded the whole or any part of the evidence, and (2) he must have ceased to exercise jurisdiction. The second Magistrate is contrasted with the first as 'another Magistrate'. I understand the word 'another' to mean that the second Magistrate should differ from the first both on point (1) and point (2). Mr. Asthana differs only on point (2). In my opinion therefore, Mr. Asthana cannot be considered 'another Magistrate' within the meaning of Section 350 (1) because he does not fulfil the two points of difference from the first Magistrate. Therefore it appears to me that Mr. Asthana does not come under Section 350 at all. I may also point out that the fundamental idea of Section 350 is that the Magistrate who passes judgment in a case should be the Magistrate who has heard the evidence and if he has not heard all the evidence, then accused is given a right to demand resummoning and re-hearing. In the case of Mr. Asthana who has heard all the evidence for the prosecution, there is no power in this Section for him to rehear it even if he desired to do so. All the power given to him by the Code would be under Section 540 to recall and re-examine any person already examined, that is, he-could further cross-examine, if he desired to do so, the witnesses for the prosecution. But he could not have their examination-in-chief taken again or their cross-examination, and of course the power under Section 540 is entirely at the discretion of the Magistrate and the defence has no right to force him to recall these witnesses for further cross-examination if he does not desire to do so. Reference was made by learned Counsel to a ruling of a single learned Judge of the Madras High Court reported in Sardar Khan Sahib v. Athaulla (1925) 12 A.I.R. Mad. 174. In this ruling the learned Judge did not at all apply his-mind to the difficulty raised by the word 'another' and therefore I cannot take his ruling as any authority for the interpretation of that word in Section 350(1). I think that the reference is ill-advised and that the accused has no right to demand a rehearing and accordingly I refuse this criminal reference and direct that the Magistrate shall proceed with the trial of the case.