The court upheld that a de novo trial can be ordered at the discretion of the Magistrate and that earlier evidence cannot be reviewed post-order.

ORDER

1.The relief the petitioner seeks is to set aside annex-IV order. This court is called upon to invoke its inherent jurisdiction saved under section 482 of the Cr.P.C to set aside annex-IV.

2.Perused the memorandum of Crl.M.C. A report was called for from the learned Magistrate who now occupies the chair of the Court of the Judicial Magistrate-I, First Class, Thiruvananthapuram.

Perused the said report dated 19.1.2017.

3.On perusal of the memorandum of Crl.M.C and the report of the learned Magistrate I have gathered the following : Two complaints were filed against the 1st respondent before the court mentioned above. The petitioner is the power of attorney holder of the complainant. The complaints were filed alleging commission of offence under section 138 of the N.I Act. One of the complaints was taken on file as S.T 3089/2008. The other one Crl.M.C.2170/13 was numbered S.T 3090/2008. Those cases were tried jointly. Evidence was recorded in S.T 3089/2008. PWs 1 to 4 were examined and Exts P1 to P13 were marked on the side of the complainant. DW1 was examined and Exts D1 to D8 were marked on defence side. The cases were adjourned for further defence evidence. The Magistrate who recorded the evidence could not dispose of the cases. The 1st respondent moved an application before the successor Magistrate to order de novo trial. That application was allowed and de novo trial was ordered. S.T 3089/2008 and S.T 3090/2008 were re-filed as C.C 400/2012 and C.C 401/2012 respectively. Thereafter the petitioner filed annex-III application before the learned Magistrate. The relief sought in the application was to avoid de novo trial and proceed with the cases with the evidence already on record. The relief was declined by the learned Magistrate. His that order is annex-IV.

4.Heard the learned counsel for the parties and the learned Public Prosecutor.

Crl.M.C.2170/13

5.The learned Magistrate ordered de novo trial following the decision of the apex Court in Nithinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal ( AIR 2011 SC 3076 ). The learned counsel for the petitioner submitted that a de novo trial was unwarranted as the evidence already recorded had all the trappings of a regular trial. In support of his argument the learned counsel relied on the decision of the apex Court in J.V.Baharuni v. State of Gujarat ( (2014) 10 SCC 494 ). But in this case it cannot be considered now whether the evidence already recorded by the Magistrate was recorded as in a summons case. If the petitioner had any grievance against a de novo trial, she should have challenged the order of the Magistrate directing de novo trial. The petitioner did not do that. Instead, annex-III application was filed requesting the Magistrate to proceed with the evidence already recorded avoiding de novo trial. That application was not maintainable. Allowing that application would amount to review of the order directing de novo Crl.M.C.2170/13 trial. The Magistrate has no powers to review his own orders once passed. The learned Magistrate understood it and therefore dismissed annex-III application. Annex-IV order states that the evidence already recorded cannot be considered as the de novo trial has already been commenced. The said order is correct and it cannot be set aside.

6.The present Magistrate in her report dated

19.1.2017 reports that the complainant filed fresh affidavit and that Ext P1 to P13 were marked. The case now stands posted for the cross- examination of PW1. The report dated 19.1.2017 thus suggests not only that de novo trial did commence, but also that the complainant had submitted himself to the de novo trial by filing an affidavit in lieu of his examination-in-chief.

7.For reasons given above, the Crl.M.C is only to be dismissed. Dismissed.