John Beaumont, C J

[1] This is a revision application against an order made by the Additional Sessions Judge of Poona, The question, which arises, is one which has led to some difference of opinion amongst the High Courts in India.

[2] The facts are that the accused has been charged with criminal misappropriation, and the case was inquired into by a Magistrate, who heard one witness, an accountant, who gave evidence at considerable length. Then the case was transferred to another Magistrate who continued the inquiry. The accused desires the accountant witness to be recalled, and his evidence taken de novo before the new Magistrate, The learned Magistrate has refused his application, and the refusal was upheld by the learned Additional Sessions Judge.

[3] The question turns entirely on the construction of Section 350 of the Criminal Procedure Code, the question being when, in a warrant case, a trial commences. Does it commence when the Magistrate starts the inquiry, or does it only commence after the charge is framed as the lower Courts think Section 350 provides that whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has 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. Then there is a proviso that in any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them, be re-summoned and re-heard. It will be noticed, therefore, that the discretion of the Magistrate can be exercised in an inquiry or a trial, but the right of the accused to demand the re-summoning of witnesses is confined to a trial. "Inquiry" is defined in Section 4(1)(k) of the Code as including every inquiry other than a trial conducted under the Code by a Magistrate or Court.

[4] Section 251 of the Criminal Procedure Code provides: "The following procedure shall be observed by Magistrates in the trial of warrant-cases." The following sections provide that the Magistrate shall hear the complainant and take evidence. If he thinks no prima facie case is made out, he can discharge the accused. If he thinks there is a prima facie case made out, then he has to frame a charge, and take the plea of the accused. Under Section 256 if the accused claims to be tried, he is required to state whether he wishes to cross-examine any and if so, which, of the witnesses for the prosecution whose evidence has been taken.

[5] The view, which the Madras High Court has taken, in Ramanathan Chettiar v. King-Emperor (1922) I.L.R. 46 Mad. 719, is that a trial only commences when the Magistrate frames a charge, and the accused claims to be tried under Section 256, and there is no doubt a good deal to be said for that view. On the other hand, the Lahore High Court in Sahib Din v. The Crown (1922) I.L.R. 3 Lah. 115 and the Court of the Judicial Commissioner in Sind in Labhsing v. Emperor [1934] A.I.R. Sind 106 have taken the opposite view. We were told by counsel that the matter has not been considered by this Court. But in point of fact there is a decision of this Court directly in point in Dagdu v. Punja Vedu. The question there arose on an application to set aside an order of a Magistrate directing the complainant to pay compensation under Section 250 of the Criminal Procedure Code. The first Magistrate, who had inquired into the case, had framed a charge. The second Magistrate inquired into the case de novo, discharged the accused, and required the complainant to pay compensation, and the argument was that when the second Magistrate took charge, all he could do was to try the case, the charge having been framed, and it was not competent for him to re-start the inquiry which had been finished by his predecessor. But this Court rejected that view, and held that the trial commenced when the Magistrate took his seat in Court with the accused in the dock in front of him. Whatever view we might have taken had the case been free from authority, I think we ought to follow Dagdu v. Punja Vedu (supra.).

[6] In point of fact there is not much substance in the point. The second Magistrate is undoubtedly entitled to read the deposition of the absent witness and to take further evidence for the purpose of deciding whether a charge is to be framed. If he comes to the conclusion that there is no prima facie case, he can discharge the accused, without recalling the witness who has already been examined. If he frames a charge, he will undoubtedly have to recall the witness, if the accused requires him to do so under the proviso to Section 350, and I have no doubt that the accused in that case can insist on the evidence of the witness being taken de novo, and not merely I insist on his right to cross-examine under Section 25

6. That would be so, even if the view be taken that the trial commences when the charge is framed. But on the opposite view it only means that the absent witness will have to be called and re-examined before the Magistrate frames a charge, instead of afterwards. As I have said, the Magistrate can decide not to frame a charge, acting on the deposition taken by his predecessor. If he is not prepared to discharge the accused on the deposition, it will not make much practical difference whether the witness is re-examined before or after framing the charge.

[7] Neither of the lower Courts were referred to Dagdu v. Punja Vedu (supra), and I think on the authority of that case we must make the rule absolute, and direct that the Magistrate before framing the charges must accede to the accused s request to hear the evidence de novo.

Rajadhyaksha, J.

[8] I agree.