1. This Rule was issued under rather peculiar circumstances. The petitioners were convicted under Section 147 and other sections of the Indian Penal Code by the Sub-Divisional Magistrate of Suri. They then appealed to the Sessions Court and the learned Sessions Judge, in disposing of the appeal, upheld the contention of the petitioners that there had not been due compliance with the provisions of Section 342, Criminal P.C. The order which he passed then was in these terms:
The learned lower Court will, therefore, now examine all the accused persons afresh under Section 342, Criminal P.C., and call upon them to adduce any defence evidence if they choose to give any, and after the examination and cross-examination of the defence witnesses, if any, he will re-submit the record to this Court with any observations that he may choose to make on the additional evidence, if any adduced before him within a month from the receipt of the record by him. The appeal will then be heard by me on its merits.
2. Upon this, the case went back to the trying Magistrate and, after complying with the provisions of Section 342, Criminal P.C., he examined 37 witnesses for the defence. Then he submitted the record to the Judge with a few observations on this additional evidence. The learned Judge then disposed of the appeal affirming the sentences passed by the learned Magistrate.
3. The objection taken before us is to the effect that the order of remand made by the learned Judge was erroneous because it was couched in such a form that it deprived the petitioners of the opportunity of showing to the Magistrate that they ought to be acquitted. The learned Judge appears to have followed the provisions of the Civil P.C. rather than of the Criminal P.C. He should have set aside the convictions and sentences and remanded the case to the first Court; for that Court, after compliance with the provisions of Section 342, Criminal P.C., and after giving the petitioners an opportunity of calling evidence, to deal with the case on its merits as if it were before that Court for the first time. The learned Judge's procedure was clearly erroneous and the only question we have to decide is what course we ought to take. On behalf of the petitioners, it is urged that the case must be remanded to the trial Court in the form in which it should have been remanded on first occasion.
4. The learned Counsel for the petitioners further asks that the case should go not to Mr. Fell but to some other Magistrate be-cause Mr. Fell in his observations has expressed his opinion on the petitioners' case. Mr. Chaudhuri undertakes on behalf of the petitioners to waive the right of a de novo trial, should the case be sent to some other. Magistrate. On the other hand, it is urged that there is no reason why the case should not be tried by Mr. Fell because his observations are very formal and do not show that he has formed any final opinion on the matter. It appears to me that we have no option up to a certain point, that is to say, we must send the case back to the Magistrate in the proper way, namely, for compliance with the provisions of Section 342, Criminal Procedure Code, and for the purpose of giving the accused an opportunity of adducing additional evidence; and as we must go so far, it seems to me that there is no reason why, in view of Mr. Chaudhuri's undertaking, we should not go one step further and direct that the case do go to some Magistrate other than Mr. Fell.
5. The result is that, in my opinion, the Rule should be made absolute to the extent already mentioned. The order of the Sessions Judge and the order of the trying Magistrate are reversed, the convictions and sentences recorded by the Judge and the Magistrate are set aside and the case is remitted to some competent Magistrate at the headquarters station to be named by the District Magistrate other than Mr. Fell, for the Magistrate to comply with the provisions of Section 342, Code of Criminal Procedure and to allow the accused a reasonable opportunity of adducing before him such additional evidence as they may wish to adduce. The learned Magistrate will then deal with the case in accordance with law.
6. The petitioners, I understand, are on bail. They will remain on bail pending further orders of the Magistrate who will try the case.
7. I agree.