A Magistrate who has recorded evidence in a case can continue the trial even if he is succeeded by another Magistrate.

1. This is an application for revision of the order passed by Shri K. L. Pandey, Additional Sessions Judge, Betul, in Criminal Appeal No. 233 of 1950 decided on the 19th March 1951. The revision application was originally before Rao J. who by an order dated the 30th November 1951 referred the case for disposal to a Division Bench. The case thus comes before us under the orders of the Honourable the Chief Justice.

2. By his order now under revision the Additional Sessions Judge, Betul, has set aside the conviction and sentence passed on the accused (applicant before us) because in his opinion the trial Judge had acted on evidence which was not open to him. For the purpose of determining whether the action of the Additional Sessions Judge was correct or not, it is necessary to state a few facts.

3. The accused in this case was the plaintiff in Civil Suit No. 59 of 1944 decided on the 2-4-1945. That suit was instituted by him on the allegation that he had advanced Rs. 60 to one Moujilal (P. W. 2) on the 1st November 1941 and that Moujilal had executed a Chithi in his favour. The accused as plaintiff in the suit gave evidence on his own behalf and stated that Moujilal had executed the document in question. Moujilal denied that document and examined a hand-writing expert in the case and the Court decided in that suit that the document was not written by Moujilal and was a forgery.

4. On the application of Moujilal under S. 476 of the Code of Criminal Procedure, the Civil Judge, First Class. Betul, decided to prosecute Durga-prasad (applicant) for using a forged document and also for perjury and for setting up a false claim, under Ss. 471, 193 and 209 of the Indian Penal Code respectively. A complaint was accordingly filed and the present proceedings arise out of the trial of that criminal case.

5. The case went at first before Shri Nisal, Magistrate First Class, Bhainsdehi who tried the case upto the stage of cross-examination of the prosecution witnesses after charge. Later the case was transferred from his file to that of Shri G. S. L. Rajput, Judge-Magistrate. Before Shri Rajput, the accused demanded a 'de novo' trial, and Shri Rajput agreed to that request. Before however Shri Rajput could do anything in the matter, the case was retransferred to the file of Shri Nisal. Before Shri Nisal, the request for a 'de novo' trial was not made by the accused, nor did Shri Nisal feel called upon to try the case afresh, and acting on the evidence which he had already recorded previously together with such further evidence as was led in the case, he came to the conclusion that the accused was guilty. He convicted him under Ss. 209, 471 and 193 of the Indian Penal Code and sentenced him to one year's rigorous imprisonment on each count, the sentences to run concurrently.

6. Against this sentence, an appeal was filed by the accused, and the appeal was heard by Shri K. L. Pande. The learned Judge in his order now under revision came to the conclusion that the proceedings before Shri Nisal were 'ultra vires' and without jurisdiction and that there had been no proper trial of the accused at all. He felt that on the request of the accused for a 'de novo' trial made before Shri Rajput, the record of the Criminal trial which had gone on before, was wiped out with the result that Shri Nisal convicted the accused on no evidence whatever. He therefore set aside the conviction and ordered a re-trial of the case from the beginning.

7. In dealing with this matter, however, the learned Additional Sessions Judge did not confine himself to the point of law involved. He went further and expressed himself strongly in favour of the accused, and a perusal of his order shows that, but for this defect, he would have acquitted the accused of the charge found against him.

8. When the matter came before this Court, the learned single Judge (Rao J.) was faced with conflicting authorities of different Courts. He had however before him EMPEROR v. GANPAT, 1937 ILR(Nag)