PANCHANAN SARKAR Vs. EMPEROR

JUDGEMENT

(1.) In this case a rule was issued on the District Magistrate of Burdwan to show cause why an order of the Magistrate of Asansol dated 14th. April 1930 refusing the petitioner's request for a de novo trial should not be set aside, or why such other or further order should not be made as might appear fit and proper to this Court. An application for revision of the order in question was made to the District Magistrate of Burdwan and was rejected by him on 26th April. It appears that the petitioner, who was a Tahsildar at Asansol under the Maharaja of Cossimbazar, was sent up for trial on a charge of criminal breach of trust under Section 408, I.P.C. The case was at first in the file of S.K. Guha and in its early stages was apparently proceeded with on the footing that it was a trial. No less than 67 witnesses were examined for the prosecution. Thereafter, it appears that the trying Magistrate left the district and was succeeded by another Magistrate Rai Sahib Hiralal Roy. As a consequence of that Mr. Guha recorded on 29 March 1930 an order in these terms: As I am not going to make over charge immediately the ease need not be transferred just now. In the exercise of the power under Section 347, Criminal P.C., I direct that evidence shall be taken under Section 208, Criminal P.C., the accused is therefore called upon to cross-examine the prosecution witnesses forthwith and file a list of defence witnesses whom he wishes to summon under Section 208, Criminal P.C.

(2.) After that some of the witnesses were cross-examined and eventually Rai Sahib Hiralal Roy having succeeded Mr. Guha recorded an order on 9 April 1930 to the following effect: After going through the record I find that my predecessor decided under Section 347, Criminal P.C., to proceed in accordance with the provisions of Section 207, Criminal P.C. The defence want a the matter to proceed in accordance with 83. 252 and 234, Criminal P.C.

(3.) After hearing the parties the Magistrate passed the order which forms the subject matter of the present application. He stated therein that after carefully considering the arguments on both sides he thought that in view of his predecessor's decision to proceed under Section 207, Criminal P.C., he ought to abide by that decision and he accordingly followed the same course, and rejected the prayer for a de novo trial. The petitioner thereupon moved the District Magistrate with the result which has already been stated above.