Decided on December 18,1950



- (1.) IT is a fundamental principle of Criminal Law that no judicial officer should ordinarily convict an offender on the evidence which he had no opportunity to record and to hear. The underlying principle is that only the Judge who has had the opportunity of watching the conduct, expression and demeanour of the witnesses is in a better position to judge about the guilt or innocence of an offender. But Section 281 of the Hyderabad Criminal Procedure Code corresponding to Section 350 of the Indian Criminal Procedure Code provides a carefully limited exception to this salutary principle of natural justice that "he alone may decide who has heard the evidence. " This exception was introduced for the first time in the Code of 1898. Section 281 gives the discretion to a Magistrate to act upon the evidence recorded by his predecessor, but this discretion is curtailed and circumscribed so that if the accused demands that the witnesses whose statements were recorded previously by a Magistrate who has been transferred should be recalled and re-examined, the Magistrate shall summon them and examine them over again and in such a case the evidence recorded by his predecessor would be of no use. A Magistrate cannot act upon the evidence and it will have to be ignored. This discretion to act upon the evidence recorded by the predecessor and decide the case has not been given to a Sessions Judge and the trend of decisions in the Indian Union is that where a Sessions Judge acts upon evidence recorded by his predecessor his decision is vitiated regardless of the fact whether the accused is prejudiced thereby or not. Evidently an exception was created in the cases before Magistrates at the instance of the Government on the ground of expediency and convenience because the Magistrates were transferred frequently after they had recorded evidence partially and in consequence of the transfer the trial had to be started 'de NOVO'. This led to delay in criminal proceedings and sometimes owing to the long delay proper Justice could not be meted out. Somehow or other the Sessions Judge is not given the power to decide upon the evidence recorded by his predecessor. Evidently the necessity was not felt because Sessions Judges were not as frequently transferred as the Magistrates. This would show that the object of the legislature is to adhere as far as possible to the principle that 'he alone should decide who has heard the evidence'. The legislature did not want to depart from this salutary principle of justice, as far as it could be followed.
(2.) THE question often arises where a discretion has been given to the Magistrate under Section 281 of Criminal Procedure Code to act upon the evidence recorded by his predecessor, whether if such a discretion were given to the Sessions Judge, it would infringe any accepted principle of law. This discretion has been given only on grounds of expediency. Would it around to want of jurisdiction if the Sessions Judge acted upon the evidence of his predecessor? With regard to this question some of the High Courts of the Indian Union have held that it goes to the root of the matter and the Sessions Judge has no jurisdiction. The Rangoon Rich Court has held in the case of Ngasan Tin v. Emperor AIR (17) 1930 Rang 354, that the Sessions Judge has no jurisdiction to pass a sentence on the evidence recorded wholly or partly by his predecessor and the consent of the accused cannot give him jurisdiction. But if we go through the decisions under Section 350 of the Indian Criminal Procedure Coda which corresponds to Section 281 of the Hyderabad Criminal Procedure Code, it would appear that although the accused has the right to demand that there should be a 'de NOVO', trial where the Magistrate has not recorded the whole of the evidence, but still where previous depositions have been treated as part of the record as the request of the accused, such a trial has been held to be not illegal. In this connection the decision of the Nagpur High Court reported in Ibrahim Sheikh v. Emperor AIR (21) 1934 Nag 209, would be in point. Again the Calcutta High Court in the case of Kudratulla v. Emperor 39 Cal 781, held that the judgment by a Magistrate on evidence to wholly recorded by himself is liable to be set aside 'only where the accused has been actually prejudiced'. Again the Punjab Chief Court and the Upper Burma Judicial Commissioner's Court have held that where there hag been only an omission on the part of the Magistrate to enquire from the accused whether he wished to exercise the right by proviso A to Section 350, it could not be said that there was a failure of justice occasioned by the. omission and where the accused had a perfectly fair trial the omission to enquire from the accused of his right provided by proviso A to Section 350, at the most would amount to an error which was curable under Section 537 of the Criminal Procedure Code vide in this connection Amir Khan v. Emperor 3 Pun Re Cr 1903 and 191 A 175 (sic ). This view receives support from an old ruling reported in Thakurdas Manghi v. Namdur Mundul 24 WR Cr 12, where it has been held that where the irregularity has not prejudiced the accused the case was covered by Section 537 and the Magistrate was competent to pronounce the Judgment on the evidence taken by his predecessor.
(3.) THE trend of these decisions would show that the judgment of a Magistrate who has based his conclusion upon the evidence recorded by his predecessor would ordinarily be set aside when it appears that it has prejudiced the accused or has resulted in miscarriage of justice, otherwise not.;

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