1. In this case a rule was issued on the District Magistrate of Burdwan to show cause why an order of the Magistrate of Asansol dated 14th. April 1930 refusing the petitioner's request for a de novo trial should not be set aside, or why such other or further order should not be made as might appear fit and proper to this Court. An application for revision of the order in question was made to the District Magistrate of Burdwan and was rejected by him on 26th April. It appears that the petitioner, who was a Tahsildar at Asansol under the Maharaja of Cossimbazar, was sent up for trial on a charge of criminal breach of trust under Section 408, I.P.C. The case was at first in the file of S.K. Guha and in its early stages was apparently proceeded with on the footing that it was a trial. No less than 67 witnesses were examined for the prosecution. Thereafter, it appears that the trying Magistrate left the district and was succeeded by another Magistrate Rai Sahib Hiralal Roy. As a consequence of that Mr. Guha recorded on 29th March 1930 an order in these terms:
As I am not going to make over charge immediately the ease need not be transferred just now. In the exercise of the power under Section 347, Criminal P.C., I direct that evidence shall be taken under Section 208, Criminal P.C., the accused is therefore called upon to cross-examine the prosecution witnesses forthwith and file a list of defence witnesses whom he wishes to summon under Section 208, Criminal P.C.
2. After that some of the witnesses were cross-examined and eventually Rai Sahib Hiralal Roy having succeeded Mr. Guha recorded an order on 9th April 1930 to the following effect:
After going through the record I find that my predecessor decided under Section 347, Criminal P.C., to proceed in accordance with the provisions of Section 207, Criminal P.C. The defence want a the matter to proceed in accordance with 83. 252 and 234, Criminal P.C.
3. After hearing the parties the Magistrate passed the order which forms the subject matter of the present application. He stated therein that after carefully considering the arguments on both sides he thought that in view of his predecessor's decision to proceed under Section 207, Criminal P.C., he ought to abide by that decision and he accordingly followed the same course, and rejected the prayer for a de novo trial. The petitioner thereupon moved the District Magistrate with the result which has already been stated above.
4. The main contention which has been urged before us is that the learned District Magistrate erred in law in holding that it was entirely within the discretion of the trying Magistrate to grant the request for de novo trial or not, and it has been strenuously argued that he ought to have held that the accused bad a right to a de novo trial. The matter seems to depend mainly upon the interpretation to be placed on Sections 347 and 350, Criminal P.C. Section 347 reads as follows:
If in any enquiry before a Magistrate or in any trial before a Magistrate before signing, judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Sessions or High Court, and if he is empowered to commit for ferial, he shall stop further proceedings and commit the accused under the provisions hereinbefore contained.
5. Section 350 provides for cases of conviction or commitment upon evidence partly recorded by one Magistrate and. partly by another. The learned advocate for the petitioner has contended that the proceedings were a trial and that that being so he was entitled to demand as of right a de novo trial. The answer to that however seems to be that the Magistrate had undoubtedly power at any stage of the proceedings to decide that the case was one which he ought not to try and which ought to be committed to the Sessions, and according to this section he would ordinarily commit the case for trial provided the evidence had been completed. In this particular instance however the evidence had not yet been completed and therefore it was not possible for the first Magistrate to make an order of commitment. He contented himself therefore with merely recording an order that the case was one which should be committed. From that moment what had hitherto been a trial became an enquiry, and the only reason why the case was not there and then committed for trial was that the enquiry was incomplete it being left by the Magistrate to his successor to finish the enquiry and make the necessary order for commitment. The argument advanced by the learned advocate for the petitioner seems really to amount to this that he wishes to tie the Magistrate down to the view which he took of the case in its earlier stages. It seems to be almost tantamount to saying 'once a trial always a trial.' I do not think that that view can be supported. It is to be borne in mind that the proceeding before the Magistrate was one continuous proceeding and the power which the first Magistrate possessed to take action under Section 347 existed equally in the case of the second Magistrate. Furthermore, it appears to be clear from the record that the second Magistrate did not blindly accept the decision of his predecessor but that he brought his own mind to bear on the matter and came to the same conclusion that the case was one which ought to be committed to the Sessions.
6. Coming now to Section 350 it is important to note that the proviso to Sub-section (1) of that section refers to the case of a trial only, and it is only in that case that the accused may when the second Magistrate has commenced his proceedings demand that the witnesses or any of them should be re-summoned and reheard; or in other words, that there should be a de novo trial. The principle which underlies this proposition is obvious. Where however the proceedings are in the nature not of a trial but merely of an enquiry preparatory to commitment the necessity of any provision for a denovo trial does not exist. In my judgment there has been no error of law in this case such as to render it necessary for us to interfere in the exercise of our revisional powers.
7. On the merits I find it difficult to understand why the petitioner who, it might be imagined, would be anxious to have a speedy trial should be so insistent upon a de novo trial in holding the examination of 67 witnesses over again and the inevitable delay and expense which would result therefrom.
8. In my opinion this rule must be discharged.
9. I agree.