- (1.) This is to revise the order of the Judicial First Class Magistrate, Kurnool, refusing to examine the witnesses who were already examined by another Magistrate before the case was transferred to his file by the High Court. This case was originally on the file of the Judicial First Class Magistrate, Nandyal and he examined some witnesses, P.Ws. 1 to 12. The petitioner moved the High Court for transfer of the case to another Court and it would appear that the High Court transferred the case from the file of the Judicial First Class Magistrate, Nandyal to the file of the Judicial First Glass Magistrate, Kurnool.
(2.) When the Judicial First Class Magistrate, Kurnool took up the case for trial, the accused filed an application for examination of all the witnesses who were already examined by the Judicial First Class Magistrate, Nandyal. The Judicial First lass Magistrate, Kurnool dismissed the application on the ground that what was prayed for was a de novo trial and that he cannot permit a de novo trial Under section 350 (3), Criminal Procedure Code. It is from this order of the learned Magistrate that this revision arises.
(3.) Mr. Yella Reddy appearing for the petitioner has invited my attention to section 350, Criminal Procedure Code, and contended that there is nothing in the section which would preclude an accused person from asking for examination of all the witnesses already examined by another Magistrate if it would serve the interests of justice. In support of his contention, he has invited my attention to the decision of the Madras High Court in In re, Ganesa Pillai, where Somasundaram, J., dealing with the scope of section 192 (1) and section 528 (2) Criminal Procedure Code, observed: "This is consistent With the interpretation sought to be given by Sri Sundaravaradan that When the case was transferred at the stage at Which this Was transferred to a new Magistrate, he should examine the witnesses afresh and dispose of the case. That is to say, there must be a fresh trial When it is transferred to him as the expression used "for enquiry or trial " means full trial and not a partial trial based on the evidence partly recorded by him and on the evidence recorded by the other Magistrate from whose file the case was transferred .In this view, inasmuch as the sub-Divisional Magistrate has not examined all the witnesses afresh, the conviction is vitiated by this illegality.";