Judgment Misra, J. 1. This Application No. 847 of 52 and Criminal Revision No. 848 of 1952, which have been heard together, arise out of facts which are so intimately connected as, according to the prosecution to form part of the same occurrence, but two different cases were started against the accused persons. Some of the petitioners in Criminal Revision No. 847--six in number--are the same as in Criminal Revision No. 848, and the point of law raised on behalf of the petitioners i3 identical in both these applications. 2. The petitioners, except Rajmangal Singh, Lachhuman Singh and Ramballam Singh, were convicted under Sec.147, Penal Code and sentenced to undergo rigorous imprisonment for six months each. Rajmangal Singh, Lachhuman Singh and Ramballam Singh were convicted under Sec.148, Penal Code and sentenced to undergo rigorous imprisonment for one year each. Rajmangal Singh was also convicted under Sec.326 of the Indian Penal Code and sentenced to rigorous imprisonment for one year. Lachhuman Singh and Ramballam Singh were also convicted under Sec.324, Penal Code and sentenced to six months rigorous imprisonment. Baliram Singh, Deonandan Singh and Nema Mariari were further convicted under Sec.323, Penal Code, but no separate sentence was passed under this section. All the sentences were ordered to run concurrently. 3. On appeal the conviction under Sections 147 and 148 was affirmed, but the sentence was reduced from six months to two months rigorous imprisonment in the case of the petitioners convicted under Sec.147, and from, one year to a period of six months rigorous imprisonment in the case of the petitioners convicted under Sec.148, Penal Code. The conviction and sentence under Sections 324 and 326 were maintained. 4. The prosecution case is that on 9-10-1949, one Narain Chamar Chaukidar reported at the police station Sitamarhi that there was an apprehension of a breach of the peace between the malik and certain people of village Punaura over the possession of a certain piece of land. The Sub-Inspector of Police, Sitamarhi, accordingly proceeded to the spot to prevent a breach of the peace, but before he could arrive, an occurrence had taken place between the parties. The Sub-Inspector of Police, Sitamarhi, accordingly proceeded to the spot to prevent a breach of the peace, but before he could arrive, an occurrence had taken place between the parties. The police arrested three persons in connection with that occurrence, and left behind Narain Chamar Choukidar apparently to watch the situation, but they had not gone far from the village when they heard a hulla behind, and on coming to the place found Narain Chamar lying injured. It was stated to the police that Narain Chamar was injured by Deonandan Singh, Nema Mariari and Baliram Singh on the order passed by the last named person as Baliram Singh came to the field and started fixing pegs to which the choukidar objected. The Choukidar was also assaulted by the petitioner Bajmangal Singh with bhala, and Rajballam Singh assaulted him with a barchhi. Jt was on these allegations that the petitioners were put upon trial and convicted and sentenced, as I have stated above. 5. The defence case, however, was that a dispute was going on between the landlord and the labourers of the village, who are Chamars. The landlord was annoyed with the recalcitrant attitude of the Chamars, and accordingly he sent some of his men to spade up the outlet from the houses of the Chamars so as to put them to inconvenience. A marpit took place for this reason between the Chamars and the landlords men. The story of the second assault, which has given rise to the case against the petitioners in Criminal Revn. No. 847, was a pure concoction. 6. The learned trying Magistrate, however, rejected the defence version, accepted the prosecution case and convicted the petitioners as aforesaid. 7. In the present petition, one contention only has been raised, which is purely a question of law, arising on the following facts. On 11-10-1949, a prayer was made by the police before the Sub-divi-sional Officer, Sitamarhi, for action under Sections 87 and 88, Criminal P. C. against the accused persons, and on 29-10-49 the learned Sub-divisional Officer made over the case for enquiry to Mr. B.K.P. Sinha, Magistrate. On 13-12-1950, however, the case was transferred to Mr. S.P. Mukherji, Magistrate, at the instance of the petitioners under the orders of the Additional District Magistrate of Muzaffarpur, as the petitioners apprehended that they would not get a fair trial in the Court of Mr. R.K.P. Sinha. B.K.P. Sinha, Magistrate. On 13-12-1950, however, the case was transferred to Mr. S.P. Mukherji, Magistrate, at the instance of the petitioners under the orders of the Additional District Magistrate of Muzaffarpur, as the petitioners apprehended that they would not get a fair trial in the Court of Mr. R.K.P. Sinha. It is alleged that they gave an undertaking to the Additional District Magistrate on that occasion that they would not claim a de novo trial before the learned Sub-divisional Magistrate. On receipt of the order from the Additional District Magistrate, Mr. S.P. Mukherji, who was acting as the Sub-divisional Officer on 13-12-1950, however, transferred the case to his own file for trial, apparently not as Sub-divisional Officer but as an ordinary Magistrate with first class powers. On 2-5-51, Mr. S.P. Mukherji was transferred, and the case went back to the general file of the Sub-divisional Officer, and the then Sub-divisional Officer Mr. N.N. Gajadar, cook up the trial and the case proceeded on for some time before him, but before he could decide it, it seems he was transferred and succeeded by another Sub-divisional Officer, K.A. Subramaniam in his office. On 20-3-1952, the accused persons claimed a de novo trial before Mr. Subramaniam, who, it appears, granted the prayer and transferred the case to Mr. S. Thakur, Magistrate first class, for disposal. On 25-4-1952, however, the Assistant Public Prosecutor filed a petition before the Sub-divisional Officer stating that the District Magistrate of Muzaffarpur had been moved against the order of the Sub-divisional Officer allowing de novo trial. It appears that in April, 1952, the learned District; Magistrate passed an order on the application filed before him in Case No. 19 of 1932-State V/s. Baliram Singh, which was the application moved: by the prosecution for the revocation of the order passed by the learned Sub-divisional Officer granting a de novo trial to the accused persons. The learned District Magistrate referred in that connection to the undertaking given by the petitioners in 1950 while the case was pending before Mr. R.K.P. Sinha that they would not claim a de novo trial in case the District Magistrate was pleased to order a transfer of the ease from Ms. Court to the Court of the Sub-divisional Officer, Sitamarhi. The learned District Magistrate referred in that connection to the undertaking given by the petitioners in 1950 while the case was pending before Mr. R.K.P. Sinha that they would not claim a de novo trial in case the District Magistrate was pleased to order a transfer of the ease from Ms. Court to the Court of the Sub-divisional Officer, Sitamarhi. The learned District Magistrate apparently seemed to think that the undertaking given by the petitioners was operative up-to-date, and if the Sub-divisional Officer could proceed to try the case himself, the question of a de novo trial would not arise, and accordingly he held that the learned Sub-divisional Officer should not have transferred the case at all to the Court of Mr. S. Thakur, meaning thereby that if the case did not go to the file of Mr. S. Thakur, the question of a de novo trial would not arise, as the petitioners would be bound by the undertaking they had given at the time of their prayer for a transfer of the case to the file of Mr. S.P. Mukherji, Sub-divisional Officer, Sitamarhi. On 21-5-52, Mr. S. Thakur looked to the order of the District Magistrate and returned the case to the file of the Sub-divisional Officer for necessary action. On 24-5-1952, the case was received back in the general file and the Sub-divisional Officer proceeded, to take up the trial. 30-5-1952 was fixed for argument, and the judgment was delivered on 2-6-1952. 8. The point made by the learned Advocate on behalf of the petitioners is that the order passed by the District Magistrate was clearly illegal, because in terms of Sec.350, Criminal P. C., the moment there is a transfer of the case from the file of one Magistrate to another for a trial, the first Magistrate ceases to exercise jurisdiction therein, and the Magistrate to whose Court the case is transferred proceeds to trial subject to the proviso that in such a trial the accused may at the time of the commencement of the proceeding demand the witnesses or any of them to be re-summoned and re-heard. The petitioners in fact had made such a prayer before Mr. Subramaniam on 20-4-1952, which prayer was apparently granted. The petitioners in fact had made such a prayer before Mr. Subramaniam on 20-4-1952, which prayer was apparently granted. The subsequent order passed by the District Magistrate cancelling the order of the Sub-divisional Officer was illegal and had the effect of depriving the petitioners of a very valuable guarantee that the Court competent to deliver judgment affecting their liberty was the Court that should hear the evidence given in the Court if the accused persons thought that that course was proper or desirable in the circumstances of the case. 9. It is, however, contended on behalf of the State that the learned District Magistrate was right in cancelling the order because what was done at the instance of the petitioners on 13-12-1950, namely when the transfer was ordered on their undertaking that they would not press for a de novo trial, was certainly operative up to the date when the District Magistrate passed his order on 21-4-52, because the undertaking given was that if the case was tried by the Sub-divisional Officer, the question of a de novo trial would not arise. I am unable to accept this contention, because, apparently, the undertaking was given at a time when there was a different Sub-divisional Officer In office, and evidently the undertaking was given so far as that Court was concerned. Thereafter the matter dragged on for about two years. Mr. Gajadar left on transfer and another Sub-divisional Officer came, namely Mr. Subramaniam, and it cannot be inferred from that undertaking that the petitioners had agreed to the trial of the case by any Sub-divisional Officer holding office without exercise of the right of a de novo trial. The undertaking given at the moment must be taken as referring to the incumbent of the office at the time when the undertaking was given and not as attaching ex officio to the Sub-divisional officer of Sitamarhi. It cannot be stretched in that manner. Apparently, therefore, the order passed by the learned District Magistrate was not the correct order. 10. The undertaking given at the moment must be taken as referring to the incumbent of the office at the time when the undertaking was given and not as attaching ex officio to the Sub-divisional officer of Sitamarhi. It cannot be stretched in that manner. Apparently, therefore, the order passed by the learned District Magistrate was not the correct order. 10. It is next urged on behalf of the State that it was open to the petitioners to make a demand for a de novo trial, because in any view of the matter and on a reading of the order passed by the learned District Magistrate it appears that he had not prohibited a de novo trial and the petitioners were not precluded from making a prayer for a de novo trial on account of the order passed by the District Magistrate. What was really sought to be done by that order was that the case should be tried by the Sub-divisional Officer and it should not be made over to Mr. S. Thakur, another Magistrate. I am unable to accept this contention as well, because the order of the District Magistrate read as a whole makes the position abundantly clear that what was at the back of his mind was the undertaking given by the petitioners, to which he has made specific reference in the order passed by him in so far as he stated that it was ordered that the Sub-divisional Magistrate should try the case against the accused if they filed a petition undertaking not to have a de novo trial, and, therefore, the case should not have been ordered to be heard by Mr. S. Thakur. Therefore, there is no scope for the contention that the learned District Magistrate had not specifically cancelled the order for a de novo trial by the learned Sub-divisional Officer, Mr. Subramaniam, granting the petitioners prayer for re-summoning of the witnesses. 11. It is next contended that it was open to the petitioners to come up to this Court against what on their behalf is called now an illegal order passed by the District Magistrate of Muzaffarpur, and they not having done so, it must be held that they waives their right to a de novo trial which in terms of proviso (a) to Sub-section (1) of Sec.350, Criminal P. C. they were entitled to. I felt Inclined to attach weight to this contention on behalf of the State, but the learned Advocate for the petitioners has cited a decision of the Calcutta High Court which is reported in -- Sasadhar Sarkar V/s. State, AIR 1952 Cal 627 (A), being a Division Bench ruling of that Court, wherein it has been held that the right of a de novo trial is a very valuable right of the accused persons in the circumstances mentioned in Sec.350, Criminal P. C., and if the Magistrate proceeds to trial without giving the accused persons the liberty to exercise the advantage allowed under the terms of that section, the trial cannot be upheld and the judgment passed must be set aside. As a matter of fact, among other points what was held in that case was that Sec.350, Criminal P. C. applies to the manner of transfer of a case from one Court to another under the provisions of the Code itself, namely, Sections 526 or 528, and in accordance with Sub-section (3) the moment a transfer is ordered, the Court from which transfer is ordered ceases to exercise jurisdiction, and the transferee Court comes in seisin of the case within the meaning of Sub-section (1) of Sec.350. It was also held in that case that where the appellate Court by setting aside the judgment of the trial Court makes it clear or gives a direction that the trial shall proceed on the evidence on record, subject to the right of cross-examination or any other right given to the accused persons, apart from the right of a de novo trial, which is not specified in that order; and in accordance with such direction, the accused persons did not claim a de novo trial, the fact that no demand is made for that purpose would not amount to a waiver of the right. It is, therefore, clear that the principle of law laid down in that case governs the present position in law. It is, therefore, clear that the principle of law laid down in that case governs the present position in law. The order passed by the District Magistrate cancelling the order of the Sub-divisional Officer for a de novo trial might reasonably be construed by the petitioners to be a bar in their way to making a demand for re-summoning of the witnesses as contemplated by the proviso to Sub-section (1) of Sec.350, Criminal P. C., and, therefore, the mere fact that they did not demand a de novo trial before Mr. Subramaniam after the case was sent back to his file by Mr. Thabur cannot be regarded as conclusive against them with regard to the right to demand a de novo trial, and in that view of the matter it must be held, as was held in the case to which I have made reference, that the petitioners have been deprived of a valuable right in a criminal trial, and the judgment cannot be allowed to stand. It is accordingly set aside, and the case is sent back for re-trial in accordance with law. The rule is accordingly made absolute.