Bapna, J.—This is a reference by the learned Sessions Judge, Nagaur. The accused Madho Ram was chal-laned by Police, Khatu, to the Court of Lala Jaswant Narain, First Class Magistrate, Nagaur, on a charge under section 302/109 M. P. C. The prosecution examined 13 witnesses. The accused stated that he had been falsely impleaded, pleaded alibi, and examined three witnesses in support of his version. The learned Magistrate was of opinion that no case had been made out and submitted the record to the learned Sessions Judge with a recommendation for discharge of the accused as required under the then Marwar Criminal Procedure Code. The learned Sessions Judge, however, came to the conclusion that the evidence was sufficient for the framing of a charge under section 302/109 M.P.C., and on 10.2.49 directed the learned Magis-trate to commit the accused to the Court of Session for trial. By the time the case was received by the lower Court, there was a change in the personnel and the case was laid before Mr. Mool Singh, Sub-Divisional Magistrate, The accused prayed for a de novo inquiry under proviso (a), section 350, sub-section (1), of the Code of Criminal Procedure. Mr. Mool Singh, Sub-Divisional Magistrate, allowed the application, whereupon the Public Prosecutor filed a revision to the Court of Session. The learned Sessions Judge was of opinion that the proceedings before the Magistrate were only in the nature of an inquiry, and, therefore, the proviso (a) to sub-section (1) of section 350 of the Code of Criminal Procedure, which only applied to trials, was not applicable. He was also of opinion that after an order of commitment had been made by the Court of Session under section 437 of the Code of Criminal Procedure, the Magistrate was not authorised to record the evidence over again, but he should have framed a charge, explained it to the accused, and enquired of him to give a list of the witnesses and after examining them, if he thought fit, he should have finally made a formal order of commitment as directed. The learned Sessions Judge has made a reference for setting aside the order of the learned Sub-Divisional Magistrate directing re-inquiry, and for further directing the Magistrate to proceed according to the observations made by the learned Sessions Judge.

2. The case originally came up before a Single Judge, who directed it to be laid before a Division Bench, as the opinion of the Indian High Courts was divided on the question whether the word "trial" referred to in section 350(1) (a) included proceedings before the framing of the charge.

3. The relevant portion of section 350 is as under: —

"(1) 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 himself; or he may resummon the witnesses and recommence the inquiry or trial:

Provided as follows: —

(a) 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 reheard; (b) the High Court, or in cases tried by Magistrates subordinate to the District Magistrate, the District Magistrate may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the Magistrate before whom the conviction was held, if such Court or District Magistrate is of opinion that the accused has been materially prejudiced thereby, and may order a new inquiry or trial.

4. According to the language of the section, a distinction has been made between an inquiry and a trial. An inquiry has been defined under section 4 (k) of the Code-

" inquiry includes every inquiry other than a trial conducted under this Code by a Magistrate or Court. "

The term trial is not defined in the Code.

5. There are

Click Here to Read the rest of this document