1. The point raised in the revision case is of some interest. The petitioner has, as the complainant in C.C. No. 107 of 1924, on the file of the 2nd Class Magistrate of Vizianagram, charged the respondents with theft. The Magistrate has acquitted the accused. His predecessor had examined 8 witnesses for the prosecution, and when the present Magistrate took up the case, the accused asked for the witnesses to be re-summoned and re-heard. The complainant was accordingly re-summoned and again examined. The accused appears then to have stated that he did not want the other witnesses recalled and the Magistrate proceeded to judgment. The petitioner argues that the Magistrate had no right to break off a de novo trial in the middle and that he was bound to re-summon and re-hear all the witnesses again end that the omission to do so vitiates the trial.
2. Now, as I read Section 350 of the Criminal Procedure Code it may he right to describe a fresh enquiry as a de novo trial, when the Magistrate himself decides to re-commence the trial; but when proviso (a) of the Section is brought into force does not seem to me that there is any question of a de novo trial. Under proviso (a) the right given to an accused person is the right of demanding that the prosecution witnesses, or any of them, be re-summoned and re-heard. It does not say that the trial must be begun again, from the beginning. The provision is one entirely in the interests of an accused person and allows him to have any witness? whom he wishes re-summoned and reheard; and obviously, he may at any time say that he does not wish certain witnesses to be re-summoned and re-heard, even though previously he had asked for them to be re-summoned and re-heard. That is to say, it rests on the accused to say who shall be re-summoned and reheard. The complainant in the case is not given this right, and to accord such a right to him would obviously work against the interests of the accused. Fresh evidence might be concocted and blunders in the previous evidence might be explained away, I am clear that when the accused is exercising his right under the proviso (a), the complainant cannot claim that he must demand a de novo trial from the beginning.
3. The petitioner calls my attention to three reported rulings, none of which seems to affect this conclusion. The ruling in Daroga Chowdhury v. Emperor (1919) 20 Cri. L.J. 638 deals with a case of an accused person, who had demanded and been granted a de novo trial, which trial, by the procedure adopted, had been in fact frustrated. It is true that the learned Judge uses language implying that when 'a de novo trial' is granted to ah accused person, the proceedings are 'completely blotted out and superseded.' But it must be remembered that he was looking at the case, from the point of view of the accused, and if the accused insists that the trial be gone on with again from the beginning and does not resile from that position, undoubtedly, so far as he is concerned, the previous proceedings are blotted out. Jago Singh v. Emperor (1919) 2 Cri. L.J. 820. is an exactly f similar case. Sahib Din v. Emperor A.I.R. 1922 Lah. 49 is wholly off the point. It is to the effect that when a witness has been re-examined at the accused's request, under Section 350 of the Criminal Procedure Code, his original statement cannot be used as evidence against the accused. This has no application to a case where the accused himself has argued, by waiving his right to re-examine the witness, as to the former statements of the witness being used against him.
4. I can find no authority in support of the petitioner's contention. The idea that when a Magistrate has himself thought it unnecessary to re-commence the trial, but when he re-calls witnesses because the accused exercises his right under proviso (a), the accused has no option of withdrawing from the exercise of that right, at a later stage of the case, and that therefore the Criminal Procedure Code compels the Magistrate to go on re-examining witnesses, though neither he nor the accused wants to do so, is not one that commands itself to me.
5. As to a further point raised, the ruling in Sriramulu v. Virasalingam (1914) 38 Mad. 585 is authority for the correctness of the Magistrate's order, as one of acquittal and not of discharge I therefore find nothing illegal in the procedure and dismiss this petition with costs.