A successor Court can proceed with the case even if evidence is not recorded by such a Court.

T.S. Doabia, J.

1. The trial magistrate formed an opinion that he can decide the case only when evidence is recorded by him. He accordingly passed an order for de novo trial. It is this order which is being impugned in the present petition. The petitioner submits that he is facing a protracted trial. A case under, sections 3 and 7 of the Essential Commodities Act, 1955, was registered against him. This happened on 10th of December, 1987. The evidence in this case was recorded by the Special Judge. Upto 15th of March, 1990 about 19 witnesses were examined. It is stated that the last witness was examined on 23rd of February, 1991. Later on, the matter came to be transferred to the Court which passed the order on 12th of February, 1992. It has come to the conclusion that the entire evidence shall have to be recorded de novo. For this, reliance has been placed on a decision given by the Supreme Court of India in the case reported as Pyare Lal v. State of Punjab, AIR 1962 SC 690. The above decision has been held to be an authority for the proposition that when a case is tried by special judge and is later on transferred to another Court, then the entire evidence has to be recorded de novo. This decision was given under the Code of Criminal Procedure, 1898. The present trial is governed by section 326 of the Code of Criminal Procedure, 1973.

2. I am of the view that the decision relied on by the trial Court would not be attracted to the facts of this case. Before giving reasons for this, it would be apt to notice the provisions of section 350 of the Code of 1898 which were considered by their Lordships of the Supreme Court in Pyare Lal (supra) and also the provisions of section 326 of the Code of 1973. These be noticed as under : Section 350 of the Code of 1898 Section 326 of the Code of 1973

Whenever any Magistrate, after having 326. Conviction or committm ent on heard and recorded the whole or any part evidence partly recorded by one magistrate of the evidence in an inquiry or a trial, and partly by another. - (1 ) Whenever ceases to exercise jurisdiction therein, and any Judge or Magistrate aft er having is succeeded by another Magistrate who heard and recorded the whol e or any has and who exercises such jurisdiction, part of the evidence in an inquiry or a the Magistrate so succeeding may act on trial, ceases to exercise j urisdiction the evidence so recorded by his therein and is succeeded by another predecessor, or partly recorded by himself Judge or Magistrate who has and who or he may resummon the witnesses and exercises such jurisdiction , the Judge or recommence the inquiry or trial. Magistrate so succeeding ma y act on the evidence so recorded by his predecessor or partly recorded by his p redecessor and partly recorded by hims elf : Provided that if the succeed ding Judge or Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.

(2) When a case is transfer red under the provisions of this Code fro m one Judge to another Judge or from on e Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section (1).

(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 322 or in which proceedings have been submitted to a superior magistrate under section 325.

3. It would also be apt to note that section 326 of the code of 1973, as it was originally brought on the statute book used the word 'Magistrate'. Later on, by Act No. 45 of 1978 the word 'Magistrate' was substituted by the words 'Judge or Magistrate'. The statement of objects and the reasons which led to the original enactment of 326 and th