In a Section 304A IPC case trial of which commenced in 2005, evidence of 7 prosecution witnesses were recorded, when the learned magistrate was transferred. The succeeding Magistrate recoreded the evidence of the last prosecution witness i.e. IO and thereafter the matter was adjourned on 5 occassions for recording 313 statement of the accused. It appears the court has not been able to frame questions for 313 statement.
The matter was prolonged since 2005 not on account of any fault of the accused but was prolonged on account of de facto complaianant who had engaged a watching advocate who also had filed some revision applications in the sessions court.
In the circumstances, it appears the succeeding magistrate is inclined to hold a de novo trial relying on S.326 Cr.p.c., either on the ground that the preceding magistrate had conducted a summary trial and therfore the suceeding magistrate cannot rely on the evidence recorded by the earlier magistrate in view of S.326 (3) of Cr.P.C. In the alternative the succeding judge may say that although the earlier judge has not conducted a summary trial, the suceeding judge is within his right to order a de novo trial in view of the proviso to S.326 Cr.P.C.
Thus there would be procrastination of an already long drawn trial. A de novo trial therefore would not only delay justice to the accused but also would considerably strain the financial resources of the accused.
In the circumstances, should the succeeding judge proceed to hold a de novo trial in exercise of the powers vested u/s 326 Cr.P.C., can the accused invoke the provisions of S.322 (1) (b) of Cr.P.C. and pray that the case be committed for trial by the preceding magistrate who has recorded the prosecution, if he is transferred within the same district? And, if he is transferred out of the district, what is the remedy to prevent the delay?
