1. The petitioners were convicted by the Stationary Sub-Magistrate of Pulivendla under Sections 147, 341 and 342, Indian Penal Code, and the sixth petitioner under Section 323, Indian Penal Code, also; and they were fined Rs. 10 each on each count. The convictions and sentences were confirmed by the appellate Court.
2. There was first an enquiry by the Stationary Sub-Magistrate of Pulivendla and the accused were discharged. The matter was then taken in revision to the Sessions Judge, who thought that the order of discharge was improperly passed and ordered a further inquiry into the matter under Section 436, Criminal t Procedure Code. The Stationary Sub-Magistrate decided to summon the prosecution witnesses already examined; and upon being told by the Sub-Inspector conducting the prosecution that it was not necessary to examine the prosecution witnesses, the Magistrate did not do so. He presumably considered the evidence already on record and then framed a charge. The trial ended in a conviction.
3. It is now argued that the Magistrate was bound to begin the enquiry afresh. I find nothing in any section of the Criminal Procedure Code which justifies this argument. When an order of discharge is set aside and further enquiry ordered, the enquiry recommences where it was left off at the time when the improper order of discharge was passed. Further enquiry, as pointed out in Queen-Empress v. Balasinnathambi (1891) 1 M.L.J. 343 : I.L.R. Mad. 334 (F.B.) does not mean merely an' examination of witnesses, but a further consideration of the evidence; and the Magistrate was therefore justified upon perusing the evidence in framing the charge.
4. Prior to the framing of the charge an accused is not entitled under Section 350, Criminal Procedure Code, to have a de novo enquiry. Section 350 gives the accused a right to have a de novo trial. It has been held by this Court that the trial begins only after the framing of a charge. I can therefore see nothing wrong in the proceedings of the Sub-Magistrate. It is however argued from Queen-Empress v. Hasnu I.L.R. 6(1884) All. 367 Ram Dial v. Emperor (1912) 14 I.C. 607 and Sahib Din v. The Crown I.L.R.(1922) Lah. 115 that the principle of natural justice requires that every Magistrate should begin his enquiry afresh and see the witnesses for himself before he convicts the accused. I do not think that the Criminal Procedure Code recognises or suggests that there is such a principle of natural justice. On the contrary, it negatives the existence of such a principle; for it leaves the resummoning of witnesses entirely to the discretion of the Magistrate. He may feel that he would like to see a witness or question him further; and Section 350(1) gives him authority to do so. If he does not feel it necessary to examine any witnesses afresh it is not incumbent on him to do so. After the framing of the charge, he had in any event an opportunity of seeing the witnesses for himself during the further cross-examination. This matter has come before this Court on many occasions, and was considered by Jackson, J., in Lakshmi Reddy v. Muni Reddy (1930) 60 M.L.J. 524 : I.L.R. Mad. 512 where he held that there was no obligation laid on the Magistrate to begin the enquiry afresh.
5. A further argument advanced is that even though the Magistrate is given a discretion to continue the enquiry from the place where it was left by his predecessor he exercised the choice in favour of commencing the enquiry de novo by summoning the witnesses. I cannot agree that the resummoning of the witnesses is tantamount to recommencing the inquiry; and even if it is true that the Magistrate, when he resummoned the witnesses, contemplated recommencing the enquiry, he was not precluded from changing his mind before he recommenced the enquiry.
6. The evidence before the Courts below was considered sufficient by them to sustain a conviction; and I am not prepared to interfere in revision with that finding.
7. The petition is therefore dismissed.