R.L. Narasimham, C.J.
1. This is a revision against the appellate Judgment of the Additional Sessions Judge of Ganjam, maintaining the conviction of the petitioner under Section 325 I. P. C. and the sentence of two months' rigorous imprisonment passed on him by the Judicial Magistrate of Kodala.
2. The allegation against the petitioner was that he intervened in a private quarrel between the females of his house and those of his co-villager named Kasinath Senapati (P. W. 1) on 27-6-1959 and assaulted the said Kasinath Senapati who is an old man aged 64 years. In the course of the assault, it is said, he gave fist blows on his mouth and also threw him on the ground. In consequence of this assault two of his teeth got dislocated and one of them actually fell on the ground. Kasinath sustained several injuries all over his body. He reported the matter to the village Karji, Gobardhan (P. W. 6) on the same day, and the latter prepared a report (Ext. 2) which was signed by Kasina'h Senapati and taken to the Police Station at Purushottom-pur two miles away where a formal F. I. R. Ext. 5 was drawn up on 28-6-1959 by the Officer-in-charge, P. W. 8.
Investigation at the earlier stages was done by his A. S. I. who sent Kasinath for medical examination to P. W. 7. The broken tooth was also produced by Kasinath before the Police and it was also shown to the Medical Officer. The Medical Officer found that the right central incisor tooth of the lower law had fallen from its socket and thera was bleeding from the socket. He also found the left central incisor tooth of the lower jaw dislocated and some bleeding from its socket. In addition to these two injuries there were five other injuries, bruises and swellings on his right forearm, knee joint, lower lip and the bridge of the nose. The injuries to his two teeth were held to be grievous in nature and according to the Medical Officer they were caused by blows with fists or any hard and blunt weapon. One of the teeth that had fallen fitted in the socket in which bleeding was noticed. The Medical Officer, however stated that the injuries could also have been caused by a fall.
3. To prove the charge against the petitioner the prosecution relied not only on the evidence ot the injured person, Kasinath Senapati, but also on that of three other respectable persons, namely P. Ws. 2, 3 and 5. They have all spoken about the scuffle and the giving of fist blows by the petitioner to Kasinath, and his being thrown on the ground. There are doubtless some discrepancies in their evidence but these witnesses have been believed by two-courts of fact and I am not inclined to differ from their finding as regards their appreciation of the evidence of these witnesses.
3a. The petitioner has also taken no consistent plea. In his statement under Section 342 Cr. P. C. he suggested that he did not intervene in the quarrel amongst the females but the informant namely Kasinath Senapati deliberately broke his own teeth (as he is an old man whose teeth were already loose) and then falsely charged the petitioner with having caused such an injury. But during the cross-examination of Kasinath (P. W. 1) by the petitioner it was suggested that there was a scuffle between the petitioner and Kasinath when the petitioner tried to intervene in order to prevent an assault on his wife and that during the course of that scuffle Kasinath fell down and broke his teeth. The cross-examination of the Medical Officer was also directed to show that the dislocation of the teeth could have been caused by a fall. But this suggestion of the petitioner during the cross examination of P. W. 1 and his own statement under Section 342 I. P. C. must bo rejected in view of the clear testimony of three eyewitnesses P. Ws. 2. 3 and 5 who have been believed by the two courts of fact. It must accordingly be held that the petitioner by giving violent blows on the face of the old man aged about 64 years and throwing him on the ground, caused dislocation of his teeth, and thus caused grievous hurt under Section 325 I. P. C.
4. Mr. Y. S. N. Murty for the petitioner raised the following contentions:
(i) According to the Medical Officer (P. W. 7) Kasinath Senapati was medically examined only on 6-7-1959 and the age of the injury as estimated by him was within twelve hours. This opinion of the Medical Officer could not possibly fit in with the prosecution case that Kasinath was injured on 27-6-1959 -- about ten days before the date of his medical examination by P. W. 7.
(ii) The case was transferred, after evidence was recorded by the preceding Magistrate, and accordingly the succeeding Magistrate should have permitted a de novo trial.
(As regards the first point his Lordship held that the estimate, of the age of the injury as given bv P. W. 7 to be within 12 hours would not in any way discredit the prosecution case and proceeded:)
5-6. As regards the second contention raised by Mr. Murty, the following facts must be noticed. In 1959 separation of the Judiciary from the Executive had not taken place in Ganjam. There was a first class Magistrate at Kodala who was invested with powers to take cognizance of offences undet Section 190(2), Cr. P. C. on Police reports. Thera was alos a Sub-divisional Magistrate at ChafrapuJ within whose jurisdiction Kodala taluk was included In this case charge-sheet was filed before the First Class Magistrate at Kodala on 9-9-1959. He took cocnizance and after some adjournments examined some prosecution witnesses. Separation of Judiciary from Executive was introduced in Ganjam districton 25-10-1961 and a Judicial Magistrate- was posted, at Kodala and another Judicial Sub-divisional Magistrate was also stationed at Chatrapur with jurisdiction over both Kodala and Chatrapur. That Sub-divisional Magistrate withdrew the case from the file of the Executive First Class Magistrate to his own file and transferred it to the file of Sri D. Naik who was the Judicial Magistrate stationed at Kodala, for disposal according to law. The new Magistrate continued the trial, with the evidence partly recorded by his predecessor, and after taking additional evidence and permitting further cross-examination, he disposed of the case. The accused also did not press for denovo trial at that stage.
7. Mr. Murty contended relying on Lakshmana Iyer v. Pachiappa Mudaliar, AIR 1961 Mad 342 which again is based on a previous decision of the High Court reported in In re Natesan Servai, AIR 1951 Mad 529 that the Judicial First Class Magistrate at Kodala should have allowed de novo trial and that the conviction and sentence passed on the evidence partly recorded by his predecessor was illegal.
8. This contention cannot, however bear scrutiny. Section 350 Cr. P. C. was amended in 1955 in consequence of which the right to claim de novo trial when one Magistrate is succeeded by another Magistrate in the middle of hearing of a criminal case, was taken away. Sub-section (1) of that Section, after the amendment of 1955 expressly confers jurisdiction on the succeeding Magistrate to act on the evidence partly recorded by his predecessor and partly by him. Sub-section (3) of that section further says that when a case is transferred under the provisions of the Criminal Procedure Code (meaning Section 528) from one Magistrate to another Magistrate, the former shall be deemed to have ceased to exercise jurisdiction and to have been succeeded by the latter Magistrate within the meaning of Sub-section (1) of that Section. Here, therefore, when the Sub-divisional Magistrate (Judicial) withdrew the case from the file of the Executive First Class Magistrate of Kodala and transferred it for disposal to the file of the Judicial Magistrate, Kodala, (Shri D. Naik) he was only exercising his powers under Section 528(2) Cr. P. C. There was thus a valid transfer under the provisions of the Code and hence the deeming provision of Sub-section (3) of Section 350 would apply and Sub-section (1) of that Section may be availed of by the succeeding Magistrate to continue the trial.
9. AIR 1951 Mad 529 on which Mr. Murty relied is clearly distinguishable. There the Sub-divisional Magistrate after taking cognizance of the offence, under Section 190(1) Cr. P. C. and examining some of the witnesses transferred the case for trial to a subordinate Magistrate for disposal. Such an order of transfer could not possibly come within the scope of Section 528 (2). Cr. P. C. because that sub-section applies only when the Sub-divisional Magistrate withdrew a case from or recalls a case which he had made over to any subordinate Magistrate. The sub-section cannot apply in that case because the case was already in his file and he had examined some witnesses. The learned Judges in the Madras case therefore pointed out (at p. 530):
'The learned Public Prosecutor does not contend that Sub-section (2) of Section 528 Cr. P. C. can be availed of in this case'.
Then they observed that the only other provision for transfer is Section 192(1) Cr. P. C. and the words 'for enquiry and trial' occurring in that subsection must be construed as referring to the initial stages of the hearing and not to hearing at a later stage after some evidence had been recorded. In the instant case, however, as already pointed out, the Sub-divisional Magistrate who was stationed at Chatrapur did not take cognizance of the case as the inception, nor did he record some of the evidence. He only exercised his power under Sub-section (2) of Section 528 Cr. P. C. (1) to recall the case from the file of the First Class Magistrate of Kodala to his own file and (2) then to transfer it to the file of the Judicial Magistrate at Kodala for disposal. The transfer was thus validly made under the provisions of the Criminal Procedure Code and Sub-section (3) of Section 350 can be availed of by the transferee Magistrate for the purpose of exercising his discretion under Sub-section (1) of that section, to proceed with the trial (without having a de novo trial).
10. It is thus that in AIR 1961 Mad 342 the facts were slightly different. There the trial originally took place in the Court of a First Class Magistrate and after some witnesses had been examined, the case was transferred to the file of the Sub-divisional Magistrate. The learned Judge who decided that case held that following the principle laid down in AIR 1951 Mad 529 the words 'for enquiry or trial' occurring in Sub-section (2) of Section 528, should be given the same meaning as was given to these words in Section 192(1) Cr. P. C. With great respect however I should point out that such a construction will not be justified because it ignores the provisions of Sub-section (3) of Section 350 Cr. P. C. Sub-section (2) of Section 528 Cr. P. C. clearly contemplates a case where after some evidence has beea recorded by a subordinate Magistrate the Sub-divisional Magistrate either withdraws the case to his file or recalls it (if he had previously transferred it to that magistrate for trial). The distinguishing feature of the earlier Madras decision where it was conceded by the Public Prosecutor that Sub-section (2) of Section 528 Cr. P. C. had no application, was not noticed by the learned single Judge who decided the latter case.
11. I am therefore of opinion that there was no illegality in the trial and conviction of the petitioner. The sentence is not severe for such an injury to an old man. The conviction and sentence are maintained and this revision petition is dismissed.