(1) This revision application is to revise an order of Mr. M. C. Sheth, the First Class Magistrate, Jasdan, rejecting an application of the applicants for a de novo trial.
(2) The Vinchhia Sub-police station registered a case against the applicants Under Section 326, IPC which was changed into a case Under Section 302 read with Section 34, IPC Now this offence is exclusively triable by a Court of Sessions. The case was started after a charge-sheet was sent to the Court of the First Class Magistrate of Jasdan on 22-6-1953. The First Class Magistrate then was Mr. M. M. Modha, who recorded good part of the evidence. He was thereafter transferred and succeeded by Mr. M. C. Sheth, before whom the application was made for a de novo trial, the charge not having been framed till the transfer of Mr. Modha.
(3) The question of law that arises is whether the accused is entitled as of right to a de novo trial by virtue of-clause (a) of proviso to Section 350, Criminal Procedure Code. Sub-section (1) of this Section states:
Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the 'evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may re-summon the witnesses and recommence the inquiry or trial.
This main provision of Section 350 is however subject to provisos one of which is that
in any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them be re-summoned and re-heard.
It is by virtue of this proviso that the accused in the present case demand a de novo trial by re-summoning the witnesses and the case being reheard.
(4) Now Sub-section (1) refers to two species of proceedings, one which is referred to as 'inquiry' and another 'trial'. The right given by the first proviso relates to only the latter proceedings, which are called trials. The simple question of law therefore arises whether the committal proceedings in the case of an offence exclusively triable by a Court of Sessions are in the nature of an inquiry or a trial. We have not the least doubt in holding that such proceedings are not trials but inquiries. The Code of Criminal Procedure makes a distinction between an inquiry and a trial in several places. Chapter VIII in the Code dealing with cases triable by a Court of Sessions or a High Court bears the heading 'Of inquiry into cases triable by a Court of Sessions or High Court.'
The word 'inquiry' has been defined in the Criminal Procedure Code by Section 4, Clause (k) as Including every inquiry other than a trial conducted under the Code by a Magistrate or Court. Chapter XX deals with trial of summons cases by Magistrates, Chapter XXI with trial of warrant cases by Magistrates, Chapter XXII with summary trials and Chapter XXIII provides for trials before High Courts and Courts of Session. But a clear distinction has been drawn between an inquiry and a trial in the Code. There has been some disagreement between the Bombay High Court and other High Courts as regards the nature of warrant cases dealt with by Magistrates.
The Bombay High Court has held that the trial commences as soon as the accused appears or is brought before the Magistrate and the Magistrate proceeds to hear the evidence, while some other High Courts seem to be of the view that the proceedings before a charge is framed are in the nature of inquiries and the trial does not commence till a charge has been framed. The Sau-rashtra High Court in - 'Narotamdas L. Shah v. Pathak Nathalal Sukhram' AIR 1953 Sau 151 (A) has followed the view of the Bombay High Court; it was observed that there was nothing in Chapter 21 to suggest that the proceedings in a warrant case were an inquiry upto a certain stage, viz., the stage of framing a charge, and that after a charge was framed they assumed the role of a trial, and that a distinction of this kind was not warranted by the provisions of the Code. The decision related to a case triable by the Magistrate.
There is no doubt and no conflict has been pointed out between the High Courts as regards cases exclusively triable by a Court of Session or by a High Court. In such matters the committal proceedings before the Magistrate are in the nature of an inquiry and not a trial. We may refer to the observations of the Lahore High Court in - 'Sahib Din v. Emperor' AIR 1922 Lah 49 at p. 53 (B), where it was observed:
Chapter XVIII relates to enquiries into cases triable by the Court of Sessions or High Court. Chapter XX deals with the trial of summons cases; Chapter XXI deals with the trial of warrant cases; Chapter XXII deals with summary trials and Chapter XXIII deals with trials before High Courts and Courts of Sessions. Now the proceedings under Chapter XVIII are obviously enquiries and not trials for the reason that the Magistrate who enquires into the case has no power to convict and can only either discharge or commend for trial. Such proceedings must clearly be regarded merely as enquiries and not as trials.
The Saurashtra case referred to above also makes distinction at page 153, where the learned Chief Justice observes:
The word 'trial' in Clause (a) of the proviso read in the context of the words inquiry or trial occurring in Section 350(1) is used in contradistinction to an enquiry and it only means that where there is a trial, as distinguished from an inquiry-provided for in certain Chapters of the Criminal Procedure Code, the right is of the accused to ask for resummoning the witnesses and rehearing them. The Magistrate's discretion is subject to this right of the accused, but that is only where the proceeding is a trial and not where they are mere inquiries under the Code as for instance in Chapter 12 or 18 of the Code.
We may also refer to Section 347 which contemplates cases triable both by a Magistrate or by a Court of Session. The distinction between an inquiry and a trial is clearly kept in view and it is provided that where it appears at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court and if the Magistrate is empowered to commit for trial, he shall commit the accused for trial. (5) We, therefore, hold that the first proviso to Section 350 does not give an absolute right to the accused to demand a re-trial in the case of a Magistrate succeeding another where the offence concerned in the case is triable exclusively by a Court of Session or the High Court. The proceedings under Chapter 18 of the Criminal Procedure Code are in the nature of inquiries and not trials. Under the circumstances, we refuse to interfere with the order of the learned Magistrate and dismiss this revision application.