DEBABRATA MOOKERJEE, J.

( 1 ) THE question that falls to be determined in this revision petition is whether a person proceeded against under the provisions of Section 110, Criminal P. C. has, on transfer of the enquiring Magistrate, the right to have evidence re-heard by the successor Magistrate.

( 2 ) THE petitioner was required under Section 110, Criminal P. C. by the Sub-divisional Magistrate of Contai to show cause why he should not be ordered to execute a bond with sureties for his good behaviour. The proceedings have had a chequered career. They were being dealt with by Mr. A. K. Sen, Sub-divisional Magistrate, before whom a large number of witnesses were examined. Mr. Sen was, however, transferred, and he was succeeded by Mr. S. C. Bhattacharjee who took up the proceedings from the point reached by his predecessor. An application was then made on behalf of the petitioner praying that the witnesses already examined before Mr. Sen might be re-summoned and their evidence re-heard by the successor Magistrate Mr. Bhattacharjee. The prayer for re-hearing the entire evidence was refused, but consideration on the merits of application for re-call of individual witnesses was assured. The petitioner was not satisfied with this concession and moved this Court and obtained the present Rule.

( 3 ) MR. Mukherjee appearing in support of the Rule contends that the petitioner could as a matter of right ask for re-call and examination over again before the new incumbent of all witnesses examined before his predecessor. It is argued that according to well-established principles regulating adjudication upon evidence, the court must hear the evidence and then decide. The refusal of the learned Magistrate to re-summon the witnesses and re-hear their evidence would, it is contended, necessarily result in his having to decide on evidence a large part of which he will not have heard himself.

( 4 ) CHANGE of Magistrate is a contingency common to enquiries and trials and although the general rule is that the court holding an enquiry or trial decides on the evidence it hears, the legislature has recognised the need of providing exceptions to the general rule. One such exception is Sub-section (1) to Section 350, Criminal P. C. , which is in these words : whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may resummon the witnesses and recommence the inquiry or trial. " proviso (a) to the sub-section is also material to our purpose and reads as follows:"in any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them be re-summoned and re-heard. "

( 5 ) SUB-SECTION (1) of Section 350, Criminal P. C. deals both with enquiry and trial and gives a wide discretion to the successor Magistrate. He may act on the evidence recorded wholly by his predecessor or partly by his predecessor and partly by himself; or if he thinks fit he may commence the inquiry or trial anew and re-hear the entire evidence. The position, therefore, is that the succes- sor Magistrate's discretion is left unlettered both when trying a case and when holding an inquiry; but proviso (a) to the sub-section puts a limitation on the magistrate's discretion in the case of trial and gives the accused person the right to demand that all or any of the witnesses be resum-moned and re-heard.

( 6 ) IT follows, therefore, that while in an enquiry the successor Magistrate may re-hear a part or whole of the evidence with or without being asked to do so, in a trial he is obliged to re-summon the witnesses and re-hear the evidence at the instance of the accused; and unless security pro

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