1. This rule was issued calling upon the District Magistrate of Burdwan to show cause why the conviction of the petitioners and the sentences passed upon them should not be set aside. The rule raises a question of general importance and it was directed that it should be heard by the Division Bench and that notice should be given to the Crown to appear. The facts of the case are these : The petitioners were put on their trial before a Magistrate of the third class who recorded the evidence of the prosecution witnesses. The Magistrate then thought that the evidence disclosed an offence which he was not competent to try and he sent the case, under the provisions of Section 346, Criminal P.C., to the Sub-divisional Magistrate. It was then transferred for trial to a Deputy Magistrate of the first class. He did not start a de novo trial but went on with the proceedings from the stage which they had already reached.
2. It is now contended that when a case has been transferred under the provisions of Section 346, the Magistrate is bound to hold la de novo trial. In our opinion that view 'is correct. The learned Deputy Legal Remembrancer pointed out to us the difficulty which is now involved in the interpretation of Section 350 owing to the latest amendment in Sub-section 2. But in our opinion that does not affect the plain meaning of the words: 'Nothing in this section applies to cases in which proceedings have been stayed under Section 346'. Altogether apart from that the ordinary rule is that the Magistrate, who tries the case, is to record the evidence and, unless an exception is definitely provided for by some statute, that ordinary provision should, in our opinion, prevail. We accordingly make this Rule absolute, set aside the orders of the Sessions Judge and the Magistrate and direct that the petitioners be retried.
3. I agree. I only desire to add that Sub-section 2 of Section 350 divides itself very clearly into two parts. The first part of the sub-section refers to proceedings which have been stayed under Section 346. Manifestly, it relates to the power given to a Magistrate by Sub-section (1) of Section 350 of acting upon evidence recorded either wholly or partly by his predecessors. I think, it is abundantly clear that the first part of Sub-section (2) was intended to provide that where proceedings had been stayed under Section 346 the Magistrate by whom the case is subsequently taken up is to hold a de novo trial. With regard to the second part of Sub-section 2 which came into existence as a result of the amendment of 1923 I am not sure that it does not refer exclusively to the provisions of Proviso (a) of Section 350. It seems to me that the only reasonable construction to put upon the second part of the sub-section would be to say that where proceedings have been submitted to a superior Magistrate under Section 349, the accused may not insist upon a de novo trial. To hold otherwise would be to render Section 349, Sub-section (2) of no effect.