State Vs. Banarsidas and ors.

State vs Banarsidas and ors.

Disposition Reference rejected Court Allahabad Decided Jul 29, 1952

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https://sooperkanoon.com/case/449519

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Citation: sooperkanoon.com/449519
Court: Allahabad High Court
Judge: Desai, J.
Decided On: Jul 29, 1952
Case Number: Criminal Ref. No. 316 of 1951
Subject: Criminal
Disposition: Reference rejected

Case Summary

AI-generated summary - not the official court judgment text.

Criminal - de novo trial - Sections 350 and 439 of Criminal Procedure Code, 1898 - discretion of the new Magistrate either to act on the evidence recorded by his predecessors or to resummon the witnesses and recommence the trial - case transferred to third Magistrate - open to such Magistrate to continue the proceed...

Key legal issue: Criminal
Outcome / disposition: Reference rejected
Acts & sections: Code of Criminal Procedure (CrPC) , 1898 - Sections 350, 350(1) and 439

Parties & Advocates

Appellant / Petitioner

State

Advocate J.R. Bhatt, Adv.

Respondent

Banarsidas and ors.

Advocate H.N. Kapoor, Adv.

Legal References

Acts: Code of Criminal Procedure (CrPC) , 1898 - Sections 350, 350(1) and 439
Reported In: AIR1953All58

Excerpt

.....schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as..........that shri n. c. jain be directed to resummon the witnesses and recommence the trial as decided by his immediate predecessor shri g. s. seth. the reference is opposed by the accused. mr. bhatt appearing for the state does not support it.2. under section 350 it was at the discretion of shri n. c. jain either to act on the evidence recorded by his predecessors or to resuramon the witnesses and recommence the trial. he was not bound by the mere election of his immediate predecessor shri g. s. seth. shri g. s. seth had only elected to resummon the witnesses and recommence the trial; he had not examined any evidence afresh and so his election did not bind shri n. c. jain who had to exercise his own discretion when the ease went to him on transfer. had he recommenced the trial and examined even one witness for the prosecution afresh, it might not have been possible for shri n. c. jain to quash the proceedings held by him and to act upon the evidence recorded by shri n. b. singh.as it is, even shri g. s. seth could have decided on the date fixed for the examination of the prosecution witnesses, not to examine them and not to recommence the trial but to act on the evidence recorded by shri n. b. singh. when the matter was still open to him it cannot be doubted that it was open to shri n. c. jain also. the learned sessions judge has relied upon state v. bansu, 1950 all. l. j. 599, to which i was a party, but that case is to be distinguished from the present case. there the second magistrate had actually recommenced the trial and dismissed the complaint on account of the complainant's absence. the first magistrate had framed a charge against the accused but the charge was held to have been wiped off when the second magistrate had decided to recommence the trial. the second magistrate had not merely decided to recommence the trial ; he had also held proceedings in the retrial and dismissed the complaint on the ground of the complainant's absence.consequently, when the.....

Full Judgment

ORDER

Desai, J.

1. The question for decision in this ease is whether it was open to the Magistrate Shri N. C. Jain, who is now trying the ease, to resume proceedings from the stage at which they were left by the Magistrate Sim N. B, Singh. The case was first heard by Shri N. B. Singh who recorded all the evidence and was transferred before he could hear the argument. The case then went to the Court of Shri G. Section Seth who decided to resummon the witnesses and recommence the trial. He issued summonses against the prosecution witnesses but before he could examine any evidence, the case was transferred from his Court and went to the Court of Shri N. C. Jain.

Shri N. C. Jain has decided to resume proceedings from the stage at which they were left by Shri N. B. Singh, hear the argument and pass judgment. The learned Sessions Judge, at the instance of the prosecution, has made this reference recommending that Shri N. C. Jain be directed to resummon the witnesses and recommence the trial as decided by his immediate predecessor Shri G. S. Seth. The reference is opposed by the accused. Mr. Bhatt appearing for the State does not support it.

2. Under Section 350 it was at the discretion of Shri N. C. Jain either to act on the evidence recorded by his predecessors or to resuramon the witnesses and recommence the trial. He was not bound by the mere election of his immediate predecessor Shri G. S. Seth. Shri G. S. Seth had only elected to resummon the witnesses and recommence the trial; he had not examined any evidence afresh and so his election did not bind Shri N. C. Jain who had to exercise his own discretion when the ease went to him on transfer. Had he recommenced the trial and examined even one witness for the prosecution afresh, it might not have been possible for Shri N. C. Jain to quash the proceedings held by him and to act upon the evidence recorded by Shri N. B. Singh.

As it is, even Shri G. S. Seth could have decided on the date fixed for the examination of the prosecution witnesses, not to examine them and not to recommence the trial but to act on the evidence recorded by Shri N. B. Singh. When the matter was still open to him it cannot be doubted that it was open to Shri N. C. Jain also. The learned Sessions Judge has relied upon State v. Bansu, 1950 ALL. l. J. 599, to which I was a party, but that case is to be distinguished from the present case. There the second Magistrate had actually recommenced the trial and dismissed the complaint on account of the complainant's absence. The first Magistrate had framed a charge against the accused but the charge was held to have been wiped off when the second Magistrate had decided to recommence the trial. The second Magistrate had not merely decided to recommence the trial ; he had also held proceedings in the retrial and dismissed the complaint on the ground of the complainant's absence.

Consequently, when the complainant filed a second complaint it was not open to the accused to urge that they had already been charged before the first Magistrate and should be deemed to have been acquitted by the second Magistrate and that the second complaint was barred by the provisions of Section 403, Criminal P. C. I hold that the proceedings held before Shri N. B. Singh were not wiped off merely by the intention of Shri G. S. Seth to resummon the prosecution witnesses and recommence the trial, arid that as he had not actually recommenced the trial, it was still open to Shri N. C. Jain to continue the proceedings from the stage at which they were left by Shri N. B. Singh.

3. As the accused themselves do not want a de novo trial and the learned Magistrate has decided to act upon the evidence recorded by his predecessor, it will not be proper for this Court to interfere with the discretion of Shri N. C. Jain and direct him to recommence the trial. Section 350, Criminal P. C., gives certain right to the accused but not to the complainant or the State when it is prosecuting the case. Therefore the State has no locus standi to urge that Shri N. C. Jain should not act upon the evidence recorded by Shri N. B. Singh.

4. The reference is rejected. Return the record to the Magistrate at once so that he may dispose of the case without any further delay.

Same Parties State vs Banarsidas and ors. Same Subject Criminal Same Judge Desai, J. Acts & Sections Code of Criminal Procedure (CrPC) , 1898 - Sections 350, 350(...

Criminal