1. On examining the record of C.C. No. 504 of 1929 the Sessions Judge of Chittoor acting under Section 436, Criminal Procedure Code, directed further inquiry and returned the case to the original Court, that of the Stationary Sub-Magistrate of Tirupathi, Meanwhile there had been a change of Magistrates and the new Magistrate after posting the case for inquiry, framed a charge without re-examining the witnesses already examined. Thereupon, the accused petitioned the District Magistrate of Chittoor who transferred the case, holding that the procedure adopted by the Sub-Magistrate was illegal and diametrically opposed to the authoritative rulings. The learned Magistrate has not cited these rulings, but reserved them for a separate instruction to the Sub-Magistrate, a course that cannot be commended, because it leaves the parties and the revisional Court entirely in the dark. However, the learned Public Prosecutor says that the rulings relied upon are Queen-Empress v. Hasnu 6 A. 367 : (1884) A.W.N. 130 and Ram Dial v. King-Emperor 14 Ind. Cas. 607 : 13 Cr. L.J. 255 : 9 A.L.J. 310.
2. In Queen-Empress v. Hasnu 6 A. 367 : (1884) A.W.N. 130 which is also an Allahabad case it is ruled that further inquiry means that the evidence should be taken de novo and does not contemplate a more re-perusal of evidence already recorded. This latter case carries no authority in Madras for it is opposed to the Full Bench decision in Queen Empress v. Balasinna Thambi 14 M. 334 : 1 M.L.J. 343 : 2 Weir 557 (F.B.) where the matter is very clearly discussed by Shephard, J. The question is how far the matter is covered by Section 350, Criminal Procedure Code. A Magistrate has recorded the evidence in an enquiry, ceases to exercise jurisdiction and is succeeded by another Magistrate who has jurisdiction; may the Magistrate so succeeding act on the evidence recorded by his predecessor? The learned Public Prosecutor would draw a distinction between cases where there has been a change of Magistrate in the course of the inquiry in the original Court, and where the inquiry has been closed by one Magistrate in the original Court by an order of discharge, and then re opened by the Sessions Judge when another Magistrate has succeeded. This circumstance does not seem to carry the case out of the perview of Section 350. It is the same inquiry until, on framing the charge, the proceedings become a trial, and the fact that there was an erroneous order of discharge, set aside by the Sessions Judge, is a mere incident in the course of that inquiry. When an enquiry was transferred from one Magistrate to another it was held to be the same inquiry, and Section 350 was applied Palaniandy Goundin v. Emperor 1 Ind. Cas. 54 : 32 M. 218 : 5 M.L.T. 218 : 9 Cr. L.J. 146 following Mohesh Chandra Saha v. Emperor 35 C. 457 : 12 C.W.N. 416 : 7 C.L.J. 488 : 7 Cr. L.J. 220 and it is very doubtful whether, in the light of these rulings, Queen-Empress v. Hasnu 6 A. 367 : A.W.N. (1884) 130, (where the District Magistrate in effect transferred the case to his own file) is still good law.
3. Mr. Somayya who appears for the petitioner has cited Ramanathan Chettiar v. Emperor 71 Ind. Cas. 608 : 46 M. 719 : 17 L.W. 412 : 32 M.L.T. 81 and 24 Cr. L.J. 192 : A.I.R. 1923 Mad. 660 under the impression that the District Magistrate takes exception to the Sub-Magistrate's refusal to hold a de novo inquiry at the accused's request but I do not gather that that point was ever in question. Of course, the accused's right under Section 350 is confined to trials and does not extend to inquiries. Nor do I gather that literal stress is laid upon the word immediate. It is not suggested that the Sub-Magistrate framed the charge so immediately that he did not even peruse the record.
4. It is urged that the transfer ordered by the District Magistrate is no real hardship to any party and should be allowed to stand. The better rule when there has been any error is to restore the status quo ante and to follow the ordinary jurisdiction to prevail. Accordingly the order of the learned District Magistrate is set aside and the procedure of the Sub-Magistrate of Tirupathi is affirmed.