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1908 Supreme(Mad) 218
IN THE HIGH COURT OF MADRAS
Miller and Sankaran Nair, JJ.
Palaniandy Gounden
Versus
Emperor
Decided On : 08.12.1908
The interpretation and application of Section 350 of the Criminal Procedure Code in cases of jurisdiction transfer and the rights of the accused to require a re-hearing of evidence.
Headnote:
Section 350 - Jurisdiction Transfer - The court held that Section 350 applies when a case under enquiry or trial is withdrawn from one Magistrate and transferred to another, and the Deputy Magistrate's procedure was governed by this section. The accused was not entitled to require a re-hearing of the evidence.
Fact of the Case:
The case before the Magistrate was a preliminary enquiry into an accusation of an offence triable exclusively by a Court of Session. It was not considered a trial before the charge was framed, and therefore not provided for by proviso (a) to Section 350.
Finding of the Court:
The court dismissed the petition, stating that the accused was not prejudiced by the construction of the section, as he had the right to recall for cross-examination all the prosecution witnesses once a charge was framed.
Issues: Interpretation of Section 350, applicability to cases of jurisdiction transfer, and the entitlement of the accused to require a re-hearing of the evidence.
Ratio Decidendi: The court's decision was influenced by the interpretation of Section 350 and its application to the transfer of jurisdiction, as well as the rights of the accused under the Criminal Procedure Code.
Final Decision: The petition was dismissed by the court.
1. We agree with the view taken of Section 350 of the Code in the recent decisions of the Calcutta High Court in The Deputy Legal Remembrancer v. Upendra Kumar Ghose 12 C.W.N. 140; 6 Cr. L.J. 434, and in Mohesh Chandra Saha v. Emperor 35 Cal. 457;. 7 Cr. L.J. 220, where the learned Judges held that the words of that section are applicable to cases in which the case under enquiry or trial is withdrawn from one Magistrate, who therefore ceases to exercise jurisdiction therein, and is transferred to another. In this view the Deputy Magistrates procedure in the present case was governed by Section 350, and he was not bound to re-hear all the prosecution witnesses. Nor was the accused, in our opinion, entitled by virtue of proviso (a) to Section 350 to require a re-hearing of the evidence.
2. The case before the Magistrate was a register case or preliminary enquiry into an accusation of an offence triable exclusively by a Court of Session. It was not in our opinion a trial before the charge is framed, but was an enquiry and therefore not provided for by proviso (a) to Section 350. Even if the case were treated by the Magistrate as a warrant case the accused is not prejudiced by this construction of the section, because by sector 256 of the Code as soon as a charge is framed he can re-call for cross-examination all the prosecution witnesses whose evidence has been taken; and therefore should the proceedings become a trial he has a right equivalent to that of demanding a de novo enquiry.
3. We dismiss the petition.
