1. The same point arises in these four criminal revision cases which can therefore be conveniently dealt with together. Crl. R. C. Nos. 268, 269, 270 and 271 of 1946 have arisen respectively out of C.C. Nos. 138, 139, 140 and 142 of 1943 on the file of the Sub-Divisional Magistrate, Coondapur. The sole accused in C.C. No. 138 of 1943 is one Miyala Narasimhacharya who held two powers of attorney from the previous Swamiar of Sri Pejawar Mutt in Udipi who died on 16th October, 1939. The accused is said to have continued in management of the affairs of the Mutt even thereafter. It is alleged that he was entrusted with and was having dominion over certain gold jewels belonging to the said Mutt. In C.C. No. 139 of 1943 Narasimhacharya is the first accused and the second accused is a person who is described as his shanbhogue. Narasimhacharya and a clerk are the accused in C.C. No. 140 of 1943. The sole accused in C.C. No. 142 of 1943 is a person who is described as a Kottari. Narasimhacharya has been convicted under Section 409 of the Indian Penal Code. The second accused in C.C. No. 139 of 1943 and the second accused in C.C. No. 140 of 1943 have each been convicted in the alternative under Section 409 read with Section 109 of the Indian Penal Code or under Section 411 of the Indian Penal Code or under Section 414 of the Indian Penal Code. The accused in C.C. No. 142 of 1943 has been convicted under Section 411 of the Indian Penal Code or Section 414 of the Indian Penal Code. All these convictions have been upheld by the Sessions Judge of South Kanara. The offences in C.C. No. 138 of 1943 are said to have been committed on or about 14th December, 1938, 10th January, 1939 and 4th September, 1939. In C.C. No. 139 of 1943, the offences are said to have been committed in or about September, 1939. In C.C. No. 140 of 1943 the offences are said to have been committed in or about December, 1938 and in C.C. No. 142 of 1943 the offences are said to have been committed on or about 17th May, 1939, 4th September, 1939 and 3rd February, 1940. It is unnecessary to refer to the sentences in any detail.
2. The cases were pending on the file of the Sub-Divisional Magistrate, Coondapur, for a considerable time for the further cross-examination of P.W. 12 who was very ill and were being adjourned from time to time. On 30th June, 1945, the Magistrate adjourned the cases to 12th July, 1945, for the same purpose; but before 12th July, 1945, the Magistrate who had heard the cases previously was transferred and another Magistrate was posted' in his place. The cases however had still to be adjourned several times as P.W. 12 continued to be ill. On 13th September, 1945, the accused in the several cases applied under Section 350(1), proviso (a) of the Code of Criminal Procedure that all the prosecution witnesses might be re-summoned and re-heard. The Magistrate however refused the request holding that if the accused desired to avail themselves of the right conferred by Section 350(1), proviso (a) of the Code of Criminal Procedure they should have applied on the 12th July, 1945, when the cases were called on before him or on any of the subsequent dates to which the cases were being re-posted. The trial proceeded resulting in convictions as already stated.
3. It is argued by Mr. Rangaswami Ayyangar, advocate for the petitioners in Crl. R.C. Nos. 268, 269 and 270 of 1946 that the accused were quite within their right in asking that the prosecution witnesses should be re-summoned and re-heard on 13th September, 1945. This argument was adopted by Mr. Gopalaswami who appeared for the petitioner in Crl. R. C. No. 271 of 1946. Section 350(1) and proviso (a) run as follows:
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 re-commence the inquiry or trial:
Provided as follows: (a) 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.
The question that arises is whether the second Magistrate can be said to have commenced his proceedings at any date before the 13th September, 1945. The argument is that at no earlier date was there any effective commencement of the proceedings by him and that the cases were simply being adjourned from one date to another. There is direct authority in support of this argument in the judgment of Happell, J., in Crl. R.C. No. 415 of 1944. The judgment of the learned Judge does not set out the facts of that case but it appears from the order of the Additional First Class Magistrate, Villupuram, which was revised by Happell, J., that in that case too the accused was attending the Court on two occasions, 14th April, 1944, and 21st April, 1944, after the new Magistrate took charge and that the application for the re-summoning and re-hearing of the witnesses was made only on 9th May, 1944. The learned Public Prosecutor admits that this is the only direct ruling on the matter. I respectfully agree with it, and in my opinion, commencement of proceedings within the meaning of the proviso means an effective commencement of the proceedings and not a mere posting of the case from one date to another. In view of this defect of procedure which is not curable by Section 537 of the Code of Criminal Procedure, the convictions and sentences of all the petitioners in the several cases must be set aside.
4. Mr. Rangaswami Aiyangar argued that in view of the long lapse of time between the dates of the several alleged offences and now, no re-trial need be ordered. He referred to the case in the Public Prosecutor v. Kadiri Koya (1915) 29 M.L.J. 101 : I.L.R. Mad. 527 as an instance where a Bench of this Court refused to order re-trial while setting aside a conviction on the ground of illegality of procedure and also placed considerable reliance on what he regarded as the halting nature of the finding in the matter of the identity of the jewels. After giving the matter my best consideration, however, I think that a re-trial should be ordered in the interests of justice. It would be noticed that notwithstanding that the offences are alleged to have been committed in 1938 and 1939 the cases were actually disposed of by the Sub-Divisional Magistrate, Coondapur, only on 29th December, 1945. Moreover, it was open to the accused to have come up to this Court in revision against the order of the Magistrate dated 18th September, 1945, refusing to re-summon and re-hear the prosecution witnesses and the matter would then have been immediately set right. They permitted the proceedings to go on, and I do not think they should be permitted to rely upon the delay that has taken place since then as a ground for refusing a re-trial. The circumstances in the Public Prosecutor v. Kadiri Koya (1915) 29 M.L.J. 101 : I.L.R. Mad. 527 were essentially different from those in the present cases. I do not consider it desirable to discuss the nature of the finding as to the identity of the jewels which Mr. Rangaswami Ayyangar characterised as a halting finding but which the learned Public Prosecutor claims as all that could possibly be given in the circumstances.
5. The convictions and sentences are therefore set aside, and the cases are directed to be re-tried.