State of Kerala v. Pappukuttan & another — 1973 DIGILAW 407 (MAD)

Judgment: Whether the omission to conduct a de novo trial by the Sub-Divisional Magistrate to whom the case was transferred, presumably under section 192(1), Criminal Procedure Code, by the District Magistrate who had recorded evidence of the prosecution witnesses, would, on the facts and in the circumstances of the case, amount to an illegality that vitiated the trial so as to render it not possible for the appellate Court to uphold the conviction of the accused by the trial (transferee) Court, even if it was found sustainable on the evidence, is the question that has been posed for consideration in this criminal appeal by the State against acquittal. While Sri K.R. Kurup, the learned State Prosecutor, would submit that the answer to the question lies in the provisions contained in section 350, Criminal Procedure Code. Sri V. Narayana Menon, the learned Counsel for the respondents (accused), would, on the other hand, maintain that the aforesaid section has no application to the facts of the case. 2. The facts relevant, briefly stated, are as follows: The complaint against the accused was filed before the District Magistrate, Trichur, who after recording the evidence of P.Ws. 1 to 4 transferred the case to the Sub Divisional Magistrate, Kunnamkulam. The Sub-Divisional Magistrate without recalling or examining any prosecution witnesses (obviously for the reason that the prosecution had no other evidence to be let in) questioned the accused under section 342, Criminal Procedure Code, recorded the evidence of the defence witness, and disposed of the case. The case ended in the Sub-Divisional Magistrate’s Court in the conviction and sentence of the accused for an offence under section 55(b) of the Abkari Act. On appeal, the learned Sessions Judge, Trichur, decided that the conviction and sentence passed by the learned Sub-Divisional Magistrate could not be upheld and, therefore, acquitted the accused. It is against this acquittal that the State has come up in appeal. 3. Before considering the merit of the case as put forward by the respective parties, it would be advantageous to consider some of the relevant provisions in the Code of Criminal Procedure, which have bearing to the question of law involved in this appeal. 4. Section 36 of the Code of Criminal Procedure, deals with ordinary powers of the District Magistrate and other Magistrates with respect to powers conferred upon them by the statutes, specified in the III Schedule to the Code. 4. Section 36 of the Code of Criminal Procedure, deals with ordinary powers of the District Magistrate and other Magistrates with respect to powers conferred upon them by the statutes, specified in the III Schedule to the Code. In the III Schedule, item 15 under the heading IV-Ordinary powers of a Sub-Divisional Magistrate appointed under section 13, deals with ordinary powers of the Sub-Divisional Magistrate in relation to the transfer of a case to a subordinate Magistrate under section 192. Item 1 of the ordinary powers of the District Magistrate under the heading V-Ordinary powers of a District Magistrate, makes mention that all the ordinary powers of the Sub-Divisional Magistrate are vested with the District Magistrate. It is therefore, clear that the District Magistrate has power to transfer a case from his file to the file of any Magistrate subordinate to him. The other section which specifically deals with the transfer of a case by a Magistrate is section 528. There is, however, a subtle difference between a transfer under section 192(1) on the one hand and a transfer under section 528(2) on the other. Under section 192(1) a Magistrate may transfer any case of which he has taken cognizance to any subordinate Magistrate. The two conditions required are: (1) the Magistrate who transfers the case should be the Magistrate who has taken cognizance of the offence; and (2) the transfer must be to a subordinate Magistrate under him. It may also be noted that there is no express indication as to the stage after which a transfer under section 192 could not be made. 5. The transfer under section 528 (2) stands on a different footing. Two types of cases of transfer are contemplated under section 528 (2), they are — (a) the District Magistrate or Sub-Divisional Magistrate may withdraw any case from any Magistrate subordinate to him and thereafter he may enquire into or try by himself or he may refer it for enquiry or trial to any other such Magistrate; and (b) a District Magistrate or Sub-Divisional Magistrate may recall any case which he has made over to any other Magistrate and may enquire into or try such case by himself or refer it for enquiry or trial to any other such Magistrate. So, under section 528 the District Magistrate or Sub-Divisional Magistrate who may withdraw the case need not be the person who has taken cognizance of the offence. Therefore, section 192 and section 528, Criminal Procedure Code, are to be applied on different occa ions to serve different purposes. 6. Regarding the applicability of section 350, Criminal Procedure Code it is necessary to bear in mind the change that has been brought into effect by Act XXVI of 1955. The section prior to the amendment stood as follows: "350. (1) 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 re-summon the witnesses and recommence 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 resummoned 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 section 346 or in which proceedings have been submitted to a superior Magistrate under section 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 subsection (1)." Section 350 after the amendment by Act XXVI of 1955 reads as follows: "350. (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 subsection (1)." Section 350 after the amendment by Act XXVI of 1955 reads as follows: "350. Conviction or commitment on evidence partly recorded by one Magistrate and partly by another-(1) 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: Provided that if the succeeding Magistrate is of opinion that further examination of any of the Witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged; (2) Nothing in this section applies to cases in which proceedings have been stayed under section 346 or in which proceedings have been submitted to a superior Magistrate under section 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 subsection (1).“ The important changes introduced by the amendment of 1955 are as follows: ”(1) The succeeding Magistrate’s discretion to recommence the enquiry or trial by beginning everything afresh has been taken away; in other words, the trial should be continued from the stage at which it was transferred or submitted. (2) The right of the accused under the former proviso (a) (unamended) to demand a de novo trial if the Magistrate decided to act on the evidence recorded by his predecessor has been taken away by omitting (deleting) former proviso (a). (3) The proviso (b) of the unamended section which gave power to the High Court or the District Magistrate to order a new enquiry or trial when the accused was materially prejudiced by reason of a conviction on evidence not wholly recorded by a Magistrate has been omitted (deleted). (3) The proviso (b) of the unamended section which gave power to the High Court or the District Magistrate to order a new enquiry or trial when the accused was materially prejudiced by reason of a conviction on evidence not wholly recorded by a Magistrate has been omitted (deleted). (4) The entire matter is left within the complete discretion of the succeeding Magistrate.“ It may be noted that even prior to the amendment it was within the discretion of the trial Magistrate to order a de novo trial. He was well within the jurisdiction either to commence the enquiry or trial from the very beginning or continue from the stage at which it was left by his predecessor. 7. We may now consider some of the judicial pronouncements on the points raised in this appeal: In Re Tota Venkanna1 C. A. White, C.J. and Moore, J., dealing with section 192, Criminal Procedure Code, observed as follows: “The Sub-Magistrate ought to have re-heard the witnesses examine d by the Joint Magistrate and framed a fresh charge. The proceedings before the Sub-Magistrate of Sattenappalli must be declared void and set aside. The fines, if levied, must be refunded. The Joint Magistrate ought to have disposed of the case himself instead of transferring it to the Sub-Magistrate.“ After this decision rendered in the year 1900, a view different from this appears to have been expressed only by Bardswell, J., in Public Prosecutor v. Shanmuga Nadar2 , and was in the following words: ”The learned Public Prosecutor argues that the words ‘for inquiry or trial’ are merely put in so far as to cover both warrant and summons cases, that it is permissible for a Magistrate empowered under this clause only to transfer a case when he first takes cognizance of it and that he cannot transfer it at any later stage even though in the matter of a warrant case the stage of trial is not reached till the charge is framed. I cannot see anything in the clause itself which indicates that any such restriction is intended to be made. I cannot see anything in the clause itself which indicates that any such restriction is intended to be made. Nor is any authority shown me for there being such a restriction.“ Referring to the decision in Re, Tota Venkanna1it was stated in that judgment as follows: ”In that case a Joint Magistrate inquired into a case that was brought as one of robbery but found that the prosecution evidence could make out only offences punishable under section 353, Indian Penal Code and section 24, Cattle Trespass Act. He therefore, transferred it to the file of the Stationary Sub-Magistrate who proceeded to dispose of it from the point at which it reached him without taking evidence afresh. It was held that he acted illegally in so doing; but clearly the point of the illegality was the fact that, under the law as it was then understood in this Court, it was the duty of the Sub-Magistrate on the case being transferred to him to take the evidence afresh. This however is no longer the law, by reason of clause (3) to section 350. This ruling therefore is not in point..........." It may be noted that clause (3) to section 350 came into being only by the amendment of the Code by Act XVIII of 1923. The two decisions referred to above came up for consideration before the Division Bench of the Madras High Court which consisted of Govinda Menon and Basheer Ahmed Sayeed, JJ., In Re Natesan Servai and others1. Govinda Menon, J., who delivered the judgment for the Bench has observed as follows: “..........It seems to us, therefore, that when the Code in sub-section (1) of section 192, speaks of the words”enquiry or trial“especially since the section appears at this stage of the Code which relates to the place of enquiry or trial or the initial stages of the hearing it is not intended to mean that sub-section (1) of section 192, could give a superior Magistrate, who has heard the case in part, power to transfer the case to a Subordinate Magistrate to hear the rest of it. We are fortified in this conclusion by early decision of this Court repotted in Re Tota Venkanna2 C. A. White, C.J. and Moore, J. have held therein that a Magistrate who has taken cognizance of a case, having tried it partly finds that an offence which a Subordinate Magistrate is competent to try has been committed, has no power to transfer the case to a Subordinate Magistrate but must himself dispose of it. This case has stood the test of time for nearly 34 years until a dissenting note was sounded by Bardswell, J. in Public Prosecutor v. Shanmuga Nadar3. The learned Judge there held that the decision in Re Tota Venkanna2, cannot be held to be any longer law because sub-section (3) to section 350 had been enacted in the Code later on. What the learned Judge says is that the point of illegality referred to in Re Tota Venkanna2, was under the law as it was then understood in this Court it was the duty of the Sub-Magistrate when a case was transferred to him, to take evidence afresh. That is no longer the law in view of sub-section (3) to section 350 and therefore according to the learned Judge the decision in Re Tota Venkanna2, cannot be an authority in point. We are of opinion that the learned Judge has not given sufficient importance to the other provisions of the Code as well as to the place in which section 192 comes in when he gave his opinion. * * * * It seems to us that the decision of Bardswell, J. runs counter to the Bench decision in Re Tota Venkanna1 , and in our opinion the Bench decision lays down the law correctly.” Somasundaram, J. in Re Canesa Pillai and another4 , while following the Division Bench ruling in Re Natesan Servai and others5sought to clarify the position with reference to sections 192 (1) and 528 (2) in the following words: “The expression ‘for enquiry or trial’ is used in both the sections. The transfer for enquiry or trail has been considered in the above decision of Govinda Menon and Basheer Ahmed Sayeed, JJ. They have held that the transfer is illegal. But I do not construe it as saying that the Court has no power to transfer a case at such a stage. The transfer for enquiry or trail has been considered in the above decision of Govinda Menon and Basheer Ahmed Sayeed, JJ. They have held that the transfer is illegal. But I do not construe it as saying that the Court has no power to transfer a case at such a stage. What they have meant is that a conviction is illegal if it is based on evidence partly receded by one Magistrate and partly recorded by another Magistrate. If the transfer is effected under the provisions of section 528 (2) the Magistrate to whom it is transferred must examine the witnesses de novo.” It may at this stage be noted, before proceeding to consider the other decisions on the question, that the decision of the learned Sessions Judge is mainly based on the ruling given by Somasundaram, J. in the case referred to above. The learned Sessions Judge, however, did not notice that the view expressed by Somasundaram, J. did not find favour with a Division Bench of the Madras High Court in Ramasamy, in Re1. In that case the petitioner and another were charged before the District Magistrate, Ramanathapuram with having committed certain offence.. The District Magistrate took the case on file and transferred it for enquiry to the Sub-Magistrate, Tiruvadanai and in the enquiry which commenced in that Court six witnesses were examined for the prosecution. There were some more to be examined. At that stage, the case was transferred by the District Magistrate to the file of the Sub-Magistrate, Sivaganga. But before the enquiry could be resumed in that Court, there was another order for transfer by the same authority to the Sub-Magistrate at Karaikudi. When the case was taken up there the petitioner the accused applied to the trying Magistrate for examination afresh of the six witnesses, whose evidence had already been recorded by the Sub-Magistrate, Tiruvadanai. This request was refused by the Magistrate. When the case was taken up there the petitioner the accused applied to the trying Magistrate for examination afresh of the six witnesses, whose evidence had already been recorded by the Sub-Magistrate, Tiruvadanai. This request was refused by the Magistrate. In revision against the said order on the question as to whether on transfer of a case under section 528, Criminal Procedure Code, after the evidence of some witnesses had been recorded by one Magistrate, the accused would be entitled to insist upon a de novo trial by the Magistrate to whom such transfer is made, Kailasam, J., before whom the case came up for hearing in the first instance, could not agree with the decision of Somasundaram, J., in Re Ganesa Pillai and another2and felt that the observations made in Re Ganesa Pillai and another2,and Re Natesan Servai and others3required reconsideration. The matter on reference came up before the Division Bench which consisted of Rama-chandra. Ayyar, C.J. and Srinivasan, J. Ramachandra Ayyar, C.J. who delivered the judgment for the Bench observed as follows: “Section 192 (2) only empowers a superior Magistrate, who takes cognizance of a case, to transfer it to any other Subordinate Magistrate; it does not expressly refer to a case where the Magistrate taking the case on his file, tries it in part and then transfers, it to a Subordinate Magistrate. Somasundaram, J., did not, however, construe the decision of the Bench as saying that the Court had no power at all to transfer the case at that stage; the learned Judge understood the case as deciding only that a conviction would be illegal if based on evidence partly recorded by one Magistrate and partly recorded by another Magistrate. Support for that view was derived from the ruling in Tola Venkanna and others ,in Re4, where it was held that the Magistrate to whom the case was transferred must re-hear the witnesses. The decision above referred to only states the general principle to which we have made reference earlier. Support for that view was derived from the ruling in Tola Venkanna and others ,in Re4, where it was held that the Magistrate to whom the case was transferred must re-hear the witnesses. The decision above referred to only states the general principle to which we have made reference earlier. The application of that principle has, however, now been modified by the statute.” The decision of the Bench referred to in the paragraph quoted above is the Division Bench ruling in Re Natesan Servai and others5, and the general principle referred to is the “general principle under which a Judge or Magistrate must decide only on the evidence tendered before him”, as stated earlier in the same judgment. It is also observed in the same judgment- “Again, we are unable to agree with Somasundaram, J., that the words inquiry or trial occurring in section 528 (2) should have the same meaning as those words occurring in section 192 (2). The latter section contemplates a transfer immediately after taking cognizance of the case by the superior Magistrate, whereas the former contemplates a transfer at any stage of the trial..........” The view of Narasimham, C.J. as expressed in Rushi Naik v. State6with reference to the provisions of sub-section (3) of section 350 is as follows: ".......... There was thus a valid transfer under the provisions of the Code and hence the deeming provision of sub-section (3) of section 350 would apply and sub-section (1) of that section may be availed of by the succeeding Magistrate to continue the trial." Narasimham, G.J. while not approving the view expressed by Somasundaram, J. in Re Ganesa Pillai and another1did also distinguish the facts of the case in Re Natesan Servai and others2and stated as follows: "Then they observed that the only other provision for transfer is section 192 (i) Criminal Procedure Code and the words ‘for enquiry and trial’ occurring in that sub-section must be construed as referring to the initial stages of the hearing and not to hearing at a later stage after some evidence had been recorded. In the instant case, however, as already pointed out, the Sub-Divisional Magistrate who was stationed at Chatrapur did not take cognizance of the case at the inception, nor did he record some of the evidence. In the instant case, however, as already pointed out, the Sub-Divisional Magistrate who was stationed at Chatrapur did not take cognizance of the case at the inception, nor did he record some of the evidence. He only exercised his power under sub-section (2) of section 528, Criminal Procedure Code (1) to re-call the case from the file of the First Class Magistrate of Kodala to his own file and (2) then to transfer it to the file of the Judicial Magistrate at Kodala for disposal. The transfer was thus validly made under the provisions of the Criminal Procedure Code and subsection (3) of section 350 can be availed of by the transferee Magistrate for the purpose of exercising his discretion under sub-section (1) of that section, to proceed with the trial (without having a de novo trial)." 8. In the matter of application of section 350, Criminal Procedure Code, preponderence of judicial thinking in our country is seen to be in favour of not making any distinction between transfer simplicitor on the one hand from transfer with the appellation "for trial or enquiry", which expressions are found in sections 192 (1) and 528 (2), Criminal Procedure Code, Barring the decision of Bardswell, J. in Public Prosecutor v. Shanmuga Nadar and another3, there appears to be agreement generally with respect to the view that transfer under section 192 (if has to be ordered immediately after the Magistrate takes cognizance of the case. The question, therefore, is whether the transfer in the instant case being one after all the prosecution witnesses were examined, could be considered to be a transfer not falling within the term "transferred under the provisions of this Code" occurring in sub-section (3) of section 350, Criminal Procedure Code. Part VI of the Code deals with proceedings in prosecutions, and sections 177 to 199 (B) fall within Chapter 15 under the said Part dealing with the jurisdiction of the criminal Courts in enquiries and trials. It is, therefore, argued by Sri Naravana Menon that violation of the provisions contained in section 192 coming under Chapter 15 would necessarily render the proceedings without jurisdiction and in that view the evidence recorded during the course of proceedings in violation of that provision cannot be used for conviction of the accused. It is, therefore, argued by Sri Naravana Menon that violation of the provisions contained in section 192 coming under Chapter 15 would necessarily render the proceedings without jurisdiction and in that view the evidence recorded during the course of proceedings in violation of that provision cannot be used for conviction of the accused. Considering the scheme of the Code, particularly the provisions relating; to the places of enquiry or trial under Chapter 15 in contrast with the other provisions relating to transfer of cases, it seems to me that the purpose of the different provisions as contained in sections 192 and 528, Criminal Procedure Code is to enable the Magistrates or the Courts, as the case may be, to effect transfer at various stages of trial or enquiry. However, we have to consider whether the transfer of a case by the Magistrate, who took cognizance, after the evidence was recorded partly or wholly to another Magistrate is without jurisdiction rendering the proceedings illegal. Somasundaram, J. himself did not take that extreme view. On the other hand the attempt was to explain the Division Bench ruling in Re Natesan Servai and others2and in Re Ganesa Pillai and another4in the following words: "..........They have held that the transfer is illegal. But I do not construe it as saying that the Court has no power to transfer a case at such a stage. What they have meant is that a conviction is illegal if it is based on evidence partly recorded by one Magistrate and partly recorded by another Magistrate. If the transfer is effected under the provisions of section 528 (2) the Magistrate to whom it is transferred must examine the witnesses de novo." The opinion of Somasundaram, J. that - ".......... there must be a fresh trial when it is transferred to him as the expression used is ‘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"- cannot in my view hold good after section 350 of the Code has been amended by Act (XXVI of 1955). If, as held by Somasundaram, J. himself, a Magistrate who took cognizance of the case could transfer the case after the enquiry or trial had begun and that would not entail illegality or lack of jurisdiction, it should follow that the trial of such a case by the succeeding Magistrate should be governed by the provisions of section 350, Criminal Procedure Code. Sub-section (3) of section 350 makes it abundantly clear that- "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-section (1)". There could be no ambiguity about this position, and when once the transfer takes effect, whether it is under section 192 (1) or 528 (2), the trial by the succeeding Magistrate has to be according to the provisions of section 350 (1) Criminal Procedure Code. The cardinal principle, which conforms to the principles of natural justice also, that the accused shall have the right to get his case decided by the Magistrate who recorded the evidence seems to Have been generally recognised by the authors of the Code, and the provisions contained in section 350 are in the form of exceptions to that general principle to meet particular situations. The amended provisions are designed to ensure speedy trial of the criminal prosecutions. The long delay that ensues in the disposal of cases is the source of discontent as well as hardship to the accused who is entitled to enjoy the right to a speedy and public trial in all criminal prosecutions. The swing of pendulum of criminal jurisprudence in our country, in recent times, has been away from technicalities. The accused prior to the amendment of section 350 by Act XXVI of 1955 had an unfettered right to demand the re-summoning of witnesses on transfer of the case to another Magistrate, whether such examination of the witnesses was material for the disposal of the case or not. It is to avoid such protraction of the criminal proceedings by formalities and technicalities that section 350 has been amended eliminating some unnecessary or superfluous proceedings, without, at the same time, sacrificing the interest of the accused. It is to avoid such protraction of the criminal proceedings by formalities and technicalities that section 350 has been amended eliminating some unnecessary or superfluous proceedings, without, at the same time, sacrificing the interest of the accused. It maybe noted that even under the proviso to sub-section (1) of section 350, as it now stands,- "If the succeeding Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may resummon any such witness and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged." This discretion vested in the succeeding Magistrate is a safeguard against miscarriage of justice. I am therefore of the opinion that the true spirit of section 350 requires that the succeeding Magistrate to whom the case has been transferred under section 192 (1), Criminal Procedure Code, should proceed with the trial of the case from the stage at which his predecessor had left it, unless, in his opinion, he finds that there is need to re-summon any witness whose evidence had already been recorded by his predecesson. The continuation of the trial by the succeeding Magistrate to whom the case had been transferred under section 192 (I) from the stage at which his predecessor had left it, may, at the most, amount to a curable irregularity, not an illegality or an exercise of power without jurisdiction, In very many cases the distinction drawn between illegality and irregularity is one of degree rather than of kind. What should weigh with the Court in a matter like the one in hand is whether the departure, if any, from the accepted principle is opposed to the principles of natural justice or is so violent as to cut at the very root of the trial to make it no trial at all. The question narrows down to one of material prejudice to the accused. Having given my anxious consideration to the facts and circumstances of the case, I find it difficult to hold that the procedure adopted by the learned Sub-Divisional Magistrate was one which the Coae positively prohibited or that it had worked injustice to the accused. The question narrows down to one of material prejudice to the accused. Having given my anxious consideration to the facts and circumstances of the case, I find it difficult to hold that the procedure adopted by the learned Sub-Divisional Magistrate was one which the Coae positively prohibited or that it had worked injustice to the accused. Counsel for the respondents has not succeeded in convincing me that any material prejudice was ‘occasioned or there was any reasonable probability of prejudice being caused to the accused on account of the procedure adopted by the Sub-Divisional Magistrate. 9. Sri Narayana Menon placed reliance on the decision of the Supreme Court in Payare Lal v. State of Punjab1. I do not think that that decision has any application to the facts of the case on hand. The relevant facts relating to the case considered by the Supreme Court in that decision, are as follows: The appellant before the Supreme Court and another were prosecuted for offences under section 5 (2) of the Prevention of Corruption Act, 1947. The trial commenced before the special Judge who recorded the evidence, but before he could deliver judgment he was transferred and was succeeded by another special Judge. The latter did not recall the witnesses and did not record the evidence over again, but proceeded with the trial without any objection from either side from the stage at which his predecessor had left. He convicted both the accused. It was the correctness of this conviction that was canvassed before the Supreme Court. The Criminal Law Amendment Act (XLVI of 1952) required the trial of offences under section 5 (2) of the Prevention of Corruption Act, 1947, to be held by a special Judge appointed in that behalf. After considering the provisions of section 350, Criminal Procedure Code and section 8 of the Criminal Law Amendment Act, 1952, the Supreme Court held that- “Again, section 350 of the Code cannot, without doing violence to the language used in it, be applied to the proceedings before a special Judge. Clearly it cannot be applied where its terms make such application impossible. Now the section can be applied, only when one Magistrate succeeds another. It lays down what the succeeding Magistrate can do. Now suppose one special Judge succeeds another. How can he exercise the powers conferred by the section? The section applies only when the predecessor is a Magistrate. Clearly it cannot be applied where its terms make such application impossible. Now the section can be applied, only when one Magistrate succeeds another. It lays down what the succeeding Magistrate can do. Now suppose one special Judge succeeds another. How can he exercise the powers conferred by the section? The section applies only when the predecessor is a Magistrate. The predecessor in the case assumed is however a special Judge. Such a Judge is not a magistrate for the purpose of the Act, nor does the Act require that he is to be deemed to be such. Section 8 (1) of the Act which only requires a special Judge to follow the procedure for the trial of a warrant case, cannot justify the creation of a fiction making the predecessor special Judge, a magistrate..........” The very reasoning given by the Supreme Court makes it clear that the provisions of section 350 are applicable only for trial or enquiry by Magistrates not to any trial or enquiry by a special Judge. 10. As has already been pointed out, there is no provision in the Code expressly prohibiting the exercise of power of transfer under section 192 after the trial had commenced by the Magistrate who took cognizance. It is within he power of, the Sub-Divisional Magistrate or the District Magistrate to do so. If, on the other hand, such power is exercised, for’ instance, by a 1st Class Magistrate, it could be considered to be an act unwarranted by the provisions of section 192, Criminal Procedure Code, as no power of transfer of cases is seem to have been conferred on him by the Code. Even assuming that any irregularity has resulted on account of the transfer of the case by the District Magistrate after he had recorded the evidence of the prosecution witnesses, it is a defect which could be laired as per the provisions of section 537 lor section 529 (f), Criminal Procedure Code. As the Supreme Court has observed, the Code is designed to subserve the ends of justice and not to frustrate them by mere technicalities. 11. In this case there is nothing to show that the accused had wanted a resummoning of the witnesses by the succeeding Magistrate. As the Supreme Court has observed, the Code is designed to subserve the ends of justice and not to frustrate them by mere technicalities. 11. In this case there is nothing to show that the accused had wanted a resummoning of the witnesses by the succeeding Magistrate. They participated in the proceedings and even before the Sessions Court they did not take up the stand that the transfer as such was illegal or without jurisdiction. Their only contention was that there should have been a de novo trial. No material prejudice resulting from the continuation of the proceedings by the Sub-Divisional Magistrate from the stage at which the District Magistrate had left it, has been shown., and therefore I do not find any justification for taking the view that to sustain the conviction a de novo trial was absolutely necessary. No doubt, the conviction and sentence should depend upon the evidence on record. The learned Sessions Judge did not apply his mind to the merit of the case. For this purpose the case has to go back to the learned Sessions Judge. 12. I, therefore, set aside the order of acquittal passed by the learned Sessions Judge in appeal and remand the matter to him to consider the case afresh on merit and dispose of it according to law. M.C.M. ----- Order set aside; matter remitted.