Judgment :- 1. The accused in C.C. No. 41 of 1951 of the Sub-Divisional Magistrate's Court of Chengannoor is the revision petitioner. He was tried for an offence under S. 326 of the Indian Penal Code for causing grievous hurt to Pw.1. He was at first convicted of the offence and sentenced to undergo rigorous imprisonment for 18 months and to pay a fine of Rs. 50/-. In appeal filed by him before the Sessions Court of Mavelikara the conviction and sentence were set aside on the ground of certain irregularities in the trial and the case was sent back for retrial. In the meanwhile the Magistrate who tried the case was transferred. The accused filed a petition on 11.3.1953 for resummoning and re-examining the prosecution witnesses. Although no order appears to have been passed on the petition the new Magistrate re-summoned the witnesses. They were, however, not examined in chief but were only further cross-examined. The learned Magistrate again convicted the accused and sentenced him to undergo rigorous imprisonment for 18 months and to pay a fine of Rs. 50/-. In appeal filed before the Sessions Court of Mavelikara the conviction was upheld but the sentence was reduced to rigorous imprisonment for six months and to pay a fine of Rs. 25/-. 2. The main ground urged in the revision petition is that the learned Magistrate went wrong in not examining in chief the prosecution witnesses who were re-summoned and in acting on the evidence given by the witnesses before the previous Magistrate. 3. A reading of the judgment of the learned Magistrate shows that he has treated the evidence given by the prosecution witnesses before his predecessor-in-office as substantive evidence in the case and has based the conviction on that evidence. There is not even a reference in the judgment to the evidence given by the witnesses before the learned Magistrate on further cross-examination by the accused. 4. There is not even a reference in the judgment to the evidence given by the witnesses before the learned Magistrate on further cross-examination by the accused. 4. S. 350 of the Code of Criminal Procedure provides: "350 (1) whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an enquiry or trial, ceased 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 re-summon the witnesses and re-commence the inquiry or trial: Provided as follows: (a) 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; (b) the High Court, or in cases tried by Magistrates subordinate to the District Magistrate, the District Magistrate may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the Magistrate before whom the conviction was held, if such Court or District Magistrate is of opinion that the accused has been materially prejudiced thereby and may order a new inquiry or trial. (2) Nothing in this section applies to cases in which proceedings have been stayed under S. 346 or in which proceedings have been submitted to a superior Magistrate under S. 349. (3) When a case is transferred under the provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter within the meaning of sub-s. (1)". 5. It has been held in several cases that the word 're-heard' in proviso (a) means that the whole evidence of the witnesses should be recorded again, i.e., they should be examined in chief, cross-examined and re-examined. In Kazi v. King Emperor ((47) Criminal Law Journal 240), a decision of the Nagpur High Court, Benson, J. observed: "'Re-hearing' means that the witnesses are to be heard again and as their hearing on the first occasion consisted of the usual examination, i.e., examination in chief, cross-examination and re-examination, it is clear that the second examination must be equally complete. Further cross-examination or a reading of or a summary of the previous evidence will not do. Further cross-examination or a reading of or a summary of the previous evidence will not do. There must be a fresh start to enable the succeeding Magistrate to hear the connected narrative of the witnesses in examination in chief and their replies when under the fire of cross-examination and to observe their demeanour throughout". To the same effect is the decision of that Court in Purushottam Rao v. Emperor (AIR 1938 Nagpur 493). It was held in that case that the failure to examine in chief the witnesses who were re-summoned was an illegality which vitiated the trial and that the accused was not estopped from raising the plea of illegality of the trial by reason of his acquiescence in the procedure adopted by the Magistrate. The same view was taken by the Calcutta High Court in Sobh Nath Singh v. Emperor (12 Calcutta W.N. 138). In that case the Calcutta High Court held that even if no objection was taken by the accused to the course adopted by the Magistrate, i.e., merely allowing the witnesses to be cross-examined further, the trial would be vitiated. In Narayana Reddy v. Bojanna (AIR 1925 Madras 1280) Krishnan, J. observed: "The object of granting a de novo trial is to enable the Magistrate who hears the case to see the way in which the witnesses give evidence before him, mark their demeanour, and thereby to be in a position to judge to their credibility. That object is lost if the witnesses are not examined again but are only allowed to be cross-examined by the accused". 6. The question was considered by the Bombay High Court in Rex v. Raval Prabjashankar (1949 (4) D.L.R. 166). It was held in that case that merely accepting the previous deposition of a witness or reading it over to him and asking him some further questions does not amount to re-hearing a witness and is not a sufficient compliance with the requirements of proviso (a) to sub-s. (1) of S. 350. Reference was made to the decisions in Umar Haji v. King Emperor (I.L.R. 46 Madras 117), Mangal Singh v. Emperor (AIR 1920 Lahore 244) and Kazi v. King Emperor (47 Criminal Law Journal 240) already referred to. Reference was made to the decisions in Umar Haji v. King Emperor (I.L.R. 46 Madras 117), Mangal Singh v. Emperor (AIR 1920 Lahore 244) and Kazi v. King Emperor (47 Criminal Law Journal 240) already referred to. Chainani, J., observed: "As, therefore, the whole evidence of the witness who is re-summoned is to be recorded again his previous deposition before another Magistrate cannot be treated as substantive evidence in the case, although it may be used for contradicting any fresh evidence given by him under S. 145, Evidence Act. The object with which the right has been given to the accused to demand that the witnesses previously examined should be re-called and re-heard is that he may, if he considers that would otherwise be prejudiced ask the Magistrate to form his own opinion about the credibility of those witnesses, whom he regards as material, and to base his decision on their evidence as recorded before him". 7. It will thus be seen that the learned Magistrate went wrong in not examining in chief the prosecution witnesses who were re-summoned at the instance of the accused and in convicting the accused on the basis of the evidence given by those witnesses before his predecessor in-office. This is an illegality which vitiated the trial. The case has, therefore, to be tried again. I, therefore, set aside the conviction of accused and the sentence awarded to him by the court below and send back the case to the Sub-Divisional Magistrate's Court, Chengannoor, for fresh trial according to law and in the light of the observations made above, the criminal revision petition is thus allowed. Allowed.