1. The petitioners have been convicted under Sections 380 and 418, Penal Code, for having entered into a house and carried away the stock of paddy and other properties stored therein.
2. The complainant and the accused advanced rival claims to that house which, it must be made clear, was not ancestral house of late Radhakrushna Jena of whom the complainant is the son-in-law but is the self-acquired house as distinct from the ancestral one. The ancestral house and other properties had admittedly been gifted to the daughter, namely, the complainant's wife, and there is no dispute about it. The dispute centres round the right and possession of the self-acquired house in which Radhakrushna Jena lived at the time of his death. The consideration of this revision involves the question whether there was illegality or irregularity causing prejudice to the petitioners in their defence in the trial.
3. The circumstances are that the trial was held by one Sri M. B. De, Magistrate, before whom the prosecution witnesses had been examined, charge had been framed, and cross-examination after charge had been completed. At that stage, that Magistrate was transferred, and the case came to the file of one Sri S. K. Das, Magistrate. This transfer no doubt entitled the accused persons to claim that the witnesses already examined be resummoned and reheard. They exercised that right at the commencement of the trial before Sri S. K. Das. He allowed the plea and directed that the prosecution witnesses should be resummoned and reheard. Accordingly, he summoned the prosecution witnesses for 30-4-1949. On 30-4-1949, however, he was already under order of transfer and he adjourned the case to 20-5-1949. On the latter date, Sri S. S. Roy took charge of the case. He recorded an order to this effect:
'The accused persons pray that the accused Dibyasingha Jena, who is dead, wanted de nivo trial, when the case was transferred to Mr. S. K. Das's Court, but they do not want this case to be tried de novo. The accused persona to go on bail of Rs. 100 each. Posted to 18-6-1949 for statement of the accused and defence. The accused to take steps at once to summon the D. Ws. and no further adjournment to be granted.'
4. There were several adjournments in the case after this. On one of the dates, the petitioners put in a prayer for cross-examining Borne of the prosecution witnesses under Schedule 57, Criminal P. C., but this was rejected. The learned Magistrate writes :
'When this case came on transfer to my Court, the accused persons got another opportunity for demanding the resummoning and rehearing of the P. Ws, under Schedule 50 (a), Criminal P. C., but they waived that right. After expiry of two dates for adducing the defence they have come forward with this petition . . .'
5. The view, that the learned Magistrate takes, is one that can be supported by Moti Shankarlal v. Keshrichand, 39 Cr. L.J. 815 : (A. I. R. (25) 1938 Nag. 288), in which Gruer J. of the Nagpur High Court held in a similar case :
'I am of opinion that each transfer gives an accused a fresh opportunity of exercising his right under the proviso to Schedule 50, Criminal P. C.'
6. From the facts of that case, it does not, however, appear that the second Magistrate before whom the claim for resummoning and rehearing the prosecution witnesses had been made had granted the prayer. I shall quote a passage from the judgment of Gruer J. in this connexion :
'These witnesses had been examined by the first Magistrate and the second Magistrate did nothing beyond recording on one hearing before him that the accused claimed trial de now, and on the second hearing adjourning the case.'
The fact, in this particular case, is, however, quite different. As it appears from the order-sheet recorded by Sri S. K. Das on 9-4-1949, he had started recommencement of the trial, if it can be so-called, for the sake of convenience. The question, therefore,, in the background of this circumstance, reduces itself to whether a fresh right did accrue after the ease wag taken over by the third Magistrate or not. On reading Section 350, Criminal P. C., as a whole, it appears that the accused's claim is with regard to resummoning and rehearing the witnesses when the witnesses, either all or some of them, had been previously heard, or, in other words, examined and cross-examined. But when the case is transferred from one Magistrate to another at a stage when there was no examination of witnesses, there is absolutely no meaning of any right having accrued within the proviso. When the witnesses are ordered to be resummoned and reheard, that necessarily means that the accused's prayer, that the evidence already recorded be dispensed with and fresh evidence be taken in, is granted. Under the circumstances, the case came to the third Magistrate with an order that the case should proceed from the beginning, that is, by resummoning and rehearing the witnesses, in other words, the occasion for exercising the right of resummoning and rehearing the witnesses after dispensing with the previous record of the witnesses' statement did not arise. Therefore, the question of waiver is immaterial. If the third Magistrate completely ignores the proceedings before the second Magistrate and takes the case as it were transferred to him from the first Magistrate, he does commit an illegality notwithstanding a Magistrate having power to act on the evidence recorded by his predecessor. He cannot ignore the proceedings before the second Magistrate (under orders of transfer) as of no effect, or, in other words, as if there has been no change of hands before he took over the case as between the first and the second Magistrates. It is quite well known that waiver applies to a subsisting right; a right, which has already been enforced and given effect to cannot be waived because there is nothing to be waived thereby. The result, therefore, is, as it happened in this case, that the Magistrate revived the dead proceedings of recording of the evidence before the first Magistrate, and the accused persons stood by. If they waived the right in the same sense in which the learned Magistrate understood it, it would mean that they had not exercised their right before the second Magistrate and they would not require the exercise of the same right over again at the hands of the third Magistrate. It might be that their learned counsel was mistaken with regard to the law, but illegality that has coma to stay cannot be overlooked. The learned counsel for the petitioners has invited my attention to several oases of the Madras and Patna High Courts. They fully support the view that I have taken.
7. In the case of Ramalingam Pillai v. Emperor, 35 Cr. L. J. 1363 : (A. I. R. (21) 1984 Mad. 475), it was held that
'The granting of a de now trial by the successor of the Magistrate had the effect of wiping out the prior proceeding and hence the old Magistrate could not proceed with the trial from the point where he had left it; where a succeeding Magistrate on taking charge, issued summons to the prosecution witnesses, he must be held to have taken cognizance of the case and that whoever is to hear the case, in such circumstances, must hear it de novo.'
8. Mr. Pasavat has cited a decision of the Nagpur High Court in the case of Emperor v. Ganapat, 38 Cr. L. J. 15 : (A. I. R. (23) 1936 Nag. 220) to establish that the effect of wiping out the proceedings occurs only where the Magistrate of his own accord decides to recommence the enquiry or trial Under Section 350 (l), Criminal P. C. But the point, however, is not supported by the decision. The learned Judge has not drawn the contrast with the circumstance when the enquiry is recommenced by the order of the Magistrate, without l any request from the accused. On the contrary, it supports the view that if according to a Magistrate the enquiry or trial is recommenced, the previous proceeding is wiped out.
9. The case of the Patna High Court has also been cited. In the case of Daroga Chowdhury v. Emperor, 20 Cr. L. J. 638 : (A.I.R (6) 1919 Pat. 578), the accused were charged with certain offence. The case was assigned to a Joinfe Magistrate who was transferred before he was able to complete the case. The S.D.O. withdraw the case to his own file and heard the case de nero disregarding all the evidence recorded by tea first Magistrate. Before the S. D. O. had concluded the case, the Joint Magistrate, who first started the trial, came back to the district 'Whereupon the S.D.O. transferred the case to him wife a direction that he should take it up from where he had left it before being transferred; it was hold that the trial was illegal and must be act aside and the accused tried de novo; that the order of the S.D.O. was ultra vires and without jurisdiction because all that had taken Place before the Joint Magistrate had been superseded and formed not part of the record in the proceeding then actually pending and being prosecuted as against the accused, and that as a consequence, the Joint Magistrate coming back to the district , had no authority or jurisdiction to act on the record of the proceedings which had basis antecedently taken before him, the result being that the accused were gravely prejudiced in their trial.
10. The fundamental principle, on which Madres and Patna High Courts' cases are based, is to the effect that once, whether at the request of the accused, or on his own motion by the Magistrate, trial or enquiry is recommened by resummoning the prosecution witnesses for being reheard afresh, the previous proceedings are superseded and, secondly, even with the consent of the accused they cannot be revived in complete ignorance of what took place between the first Magistrate and the third. Looked from one aspect, the view taken in the Nagpur High Coast may be fundamentally distinct, but I am more bound by the Patna view than by that of Nagprar High Court.
11. Conceding that it is a case of irregularity but not illegality, has there been any prejudice? In my judgment, prejudice is apparent on the face of the record, because the third Magistrate (Sri S. S. Roy) refused the right to cross-examine the prosecution witnesses Under Section 257, Criminal P. C. True, he was not bound to grant the prayer, but as it appears from his judgment, the core of the defence case had not been put to the prosecution witnesses, namely, whether the defence people were or were not in possession of the disputed house. Had the Magistrate who had recorded the prosecution evidence, been the trying Magistrate, he should have known under what circumstances the prosecution witnesses had been cross-examined and whether from the defence standpoint, it would not be prejudicial to deny the prayer for further cross-examination which was permissible Under Section 257, Criminal P. C., under the special circumstances. It may be that cross-examination of the prosecution witnesses began under stress and attain flowing from the insistence of the first Magistrate and might have been hurriedly finished up. That may be the reason why very important questions had not been put. Being a succeeding Magistrate, who had only the dumb pages of the depositions before him, he was not then in a position to judge how the refusal to give an opportunity of further cross-examination would prejudice their defence.
12. In these circumstances of the case, I am constrained to hold that the conviction and sentence cannot be sustained.
13. The next step that arises is whether the accused persons should be retried. Mr. Pasavat is not very sanguine if retrial would enure to his client's benefit. But, however, I should not allow myself to be led by that fear. It is no doubt true that it is the negligence of the accused or their counsel or both that this very important feature of the case has never been put or argued either before the trial Court or before the lower appellate Court. Under the circumstances, if there has been delay in the trial they have largely contributed to that. Under the circumstances, I direct that the accused persons shall be retried. The offences, if committed, are serious. Send the records at once to the District Magistrate, Cuttack, for marking over the case to a competent Magistrate to try.