1. In this, case the Sub-Divisional Magistrate, acting solely oil the evidence taken by the Second Class Magistrate who had sent up the case to him under Section 346 of the Code of Criminal Procedure because he could not himself try the offence disclosed by the evidence, discharged the accused. The Prosecuting Inspector who was conducting the case, for the Crown seems to have agreed to this course. The District Magistrate, however, set aside the order of discharge on the ground that the course pursued by the Magistrate was illegal and has ordered a fresh enquiry. It is argued before me that the view taken by the District Magistrate is wrong.
2. Now, it may be taken as a general principle of the Code of Criminal Procedure that evidence taken by one Magistrate is not evidence in a trial before another Magistrate unless some provision of law expressly makes it so. Mere consent of parties will not do. See In re Kottammal Kolathmgal Ummar Hajee 69 Ind. Cas. 636 : 16 L.W. 697 : (1922) M.W.N. 644 : 43 M.L.J. 659 : A.I.R.(1923) (M) 32 : 23 Cr.L.J. 748. No doubt that was a case where the Court's interference was sought on behalf of the accused. The same rule, it seems to me, should apply to the case of the prosecution also. The ruling in Jainab Bibi Saheba v. Hyderatty Saheb 56 Ind. Cas. 957 : 43 M. 609 : 12 L.W. 64 : 38 M.L.J. 532 : 28 M.L.T. 3 : (1920) M.W.N. 360 (F.B). referred to was in a civil case and does not apply to a criminal case at all. Section 346, Criminal Procedure Code, Clause (2) says what the Magistrate to whom the case is submitted is to do. He may try the case himself or refer it to any Magistrate subordinate to -him having jurisdiction or commit the accused for trial. In this case the Magistrate elected to adopt the first alternative; he was, therefore, bound to try the case himself. I do not think passing orders on evidence taken by another Magistrate who was not competent to try the case after merely hearing arguments, can be considered to be a 'trying the case himself.' When the Code intends that the Magistrate to whom a case is submitted may act on evidence already taken, it makes it quite clear as in Section 349, Criminal Procedure Code.
3. It was also objected that the accused had no notice before the order of discharge was set aside. Notice is not absolutely necessary in such cases and in this case the accused cannot be said to have been prejudiced by want of it as the question is one of law on which that order was set aside and the accused has been heard in full before me. The want of notice is thus not a ground in this case to set aside the order of the District Magistrate, though, as a general rule, notice should go to the accused before an order is made to his prejudice.
4. The petition fails and is dismissed.