Decided on December 05,1960

Sudhir Kumar Gose Appellant
STATE Respondents


- (1.) The short point that falls for consideration in this revisional application is whether Sub-section (2) of Section 350 of the Code of Criminal Procedure will or will not operate when the Magistrate to whom a case is transferred in accordance with Section 346 of the Code of Criminal Procedure chooses to proceed under the same sections of the Indian Penal Code against the accused persons.
(2.) Originally the case (under Sections 147 and 323, I.P.C.) was transferred to a learned Magistrate with third class powers. Later on, on the ground that an offence under Section 427 might also have to be tried, recourse was taken to Section 346 of the Code of Criminal Procedure. Subsequently the case was transferred to the file of a Magistrate with second class powers. The latter Magistrate accepted the evidence so far recorded by his predecessor (with third class powers), took some additional evidence and convicted the accused persons (seven in number) under Section 147 of the Indian Penal Code and Section 323 of the Indian Penal Code.
(3.) The main objection taken by Mr. Banerjee is that the learned Magistrate who tried the case finally should have recorded evidence de novo instead of making use of the evidence recorded by the previous Magistrate who had only third class powers. Under the amended Section 350, Code of Criminal Procedure, ordinarily a Magistrate may act on the evidence recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself. But Sub-section (2) of Section 350 states: Nothing in this section applies to a case in which proceedings have been stayed under Section 346 * * * *.;

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