- (1.) THIS case comes on a reference from the Sessions Judge, Sikar, dated the 12th July 1950.
(2.) THE facts giving rise to the reference are that one Bhuramal Sunar of Fatehpur presented a petition before the Magistrate, Fatehpur, under section 133 Cr. P. C. THE said Magistrate recorded the evidence of a few witnesses but the case was then transferred to the City Magistrate, Sikar, by an order of the High Court. THE City Magistrate, Sikar, thereupon asked the petitioner to produce his witnesses again. Against this order dated the 5th May 1950 the petitioner filed a revision petition before the Sessions Judge, Sikar. The learned Sessions Judge has made a report to this court with the recommendation that the Magistrate's order should be set aside. He says that persons proceeded against under sec. 133 Cr. P. C. are not accused persons and the provisions of sec. 350 Cr. P. C. do not apply to this case. I am unable to agree with the above reasoning given by the learned Sessions Judge. Sec. 350 of the Criminal Procedure Code runs as follows:- "whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in any enquiry or trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who had and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may resummon the witnesses and recommence the inquiry or trial. " It is clear from the language of this section that it applies not only to trials but also to inquiries. It makes no distinction between an inquiry into an offence made against an accused and an inquiry of the type contemplated by sec. 133 Cr. P. C. The term "inquiry" is defined in sec. 4 (K) Cr. P. C. as follows:- "inquiry" includes every inquiry other than a trial conducted under this Code by a Magistrate or Court. " It is clear from this definition that every proceeding other than a trial conducted by a Magistrate or court under the Criminal Procedure Code for enquiring into some matter in which he records the evidence of witnesses would come within its purview. When a Magistrate proceeds under sec. 133 Cr. P. C. to record evidence in order to satisfy himself about the truth of the report or information receive 1 by him and the desirability of passing the order which is expected of him, it cannot be said that he is not making an inquiry. The proceedings before the City Magistrate, Sikar, did, therefore, come within the purview of the term "inquiry" and it was perfectly within his discretion either to act on the evidence recorded by his predecessor or resummon the witnesses and recommence the inquiry. The main purpose of resummoning the witnesses in an inquiry or a trial is to enable the Magistrate to study the demeanour of the witnesses and to weigh their evidence properly, and if the Magistrate has passed an order with that view, it cannot be said that he acted illegally or in an irregular manner. The learned Sessions Judge has referred to A. I. R. 1925 Cal. 425 in support of his view. It has no bearing on the present case. It appears that either he has inadvertently quoted another ruling instead of the correct one or he was misled by some foot note in some commentary digest and did not look into the full report of the case. I do not see any reason to accept the reference of the learned Sessions Judge and it is, therefore, rejected. . ;