1. This revision is by the two accused against their convictions and sentences under Section 332 I. P. C. by the Sub-Divisional Magistrate, Poona-mallee. As the sentence is only a fine of Rs. 50 in each case and is non-appealable, the revision. has been preferred to this Court. The point of law taken before me by Sri R. Sundaravaradam, learned counsel for the petitioners, is this. This case was originally tried by the Special First Class Magistrate, Saidapet Before him P. Ws. 1 to 5 were examined. Subsequently the case was transferred to the file of the Sub-Divisional Magistrate, Poonamallee.
He examined the sixth witness and acting on the evidence of P. Ws. 1 to 5 recorded by the Special First Class Magistrate and also on the evidence of P. W. 6 recorded by him, he convicted the petitioners. It is contended that when the case was transferred after the examination of the five witnesses to the file of the Sub-Divisional Magistrate, he must have examined all the witnesses de novo. This right of getting the witnesses examined de novo which was originally granted by Section 350 Cri. P. C. has no doubt been taken away by the present amendment. The discretion of the examination of witnesses de novo is now vested in the Magistrate to whom the case is transferred or the Magistrate who succeeds the prior Magistrate,
2. But a Bench of this Court consisting of Govinda Menon and Basheer Ahmed Sayeed JJ. z, Natesan Servai, : AIR1951Mad529 has taken the view, that a conviction is illegal if it is based on the evidence partly recorded by one Magistrate and partly by another Magistrate to whom the case has been transferred. There it is pointed out that when a case is transferred it must be for trial or enquiry whether it is under Section 192(1) or under Section 528 Crl P. C. In a case of transfer under Section 192(1) the Magistrate mentioned therein may transfer any case of which he has taken cognizance for enquiry or trial to any Magistrate subordinate to him, whereas under Section 528(2) Crl. P. C. the Magistrate mentioned in the section can withdraw any case from or recall any case which he has made over to any Magistrate subordinate to him or may transfer for trial and enquiry to any Magistrate competent to enquire into.
The expression 'for enquiry or trial' is used in both the sections. The transfer for enquiry or trial has been considered in the above decision 08 Govinda Menon and Basheer Ahnied Sayeed JJ. They have held that the transfer is illegal. But JJ. do not construe it as saying that the court has no power to transfer a case at such a stage. What they have meant is that a conviction is illegal if it is based on evidence partly recorded by one Magistrate and partly recorded by another Magistrate. If the tansfer is effected under the provisions of Section 528(2) the Magistrate to whom it is transferred must examine the witnesses de novo.
They purport to follow the ruling in Tota Venkanna In re, 2 Weir 152, wherein it was held that the Magistrate to whom the case had been transferred must rehear the witnesses. This in consistent with the interpretation sought to be given by Sri Sundaravaradan that when the case was transferred at the stage at which this was transferred to a new Magistrate, he should examine the witnesses afresh and dispose of the case. That is to say, there must be a fresh trial when it is transferred to him as the expression used is 'for enquiry or trial' means full trial and not a partial trial based on the evidence partly record-ed by him and on the evidence recorded by the other Magistrate from whose file the case was transferred. In this view, inasmuch as the Sub-Divisional Magistrate has not examined all the witnesses afresh, the conviction is vitiated by this Illegality. The only question is whether the case should be sent back for fresh trial. Since the sentence is only a fine of Rs. 50 in each case, I do not think that the ends of justice require that the case should be sent back for fresh trial.
3. The convictions and sentences are setaside and the petitioners are acquitted. Thefines if collected will be refunded.Convictions set aside.