Coutts, J.:— The petitioners in this case, Jago Singh and Hurnandan Singh, have been convicted under S. 325, I.P.C Jago Singh has been sentenced to two years' rigorous imprisonment. It appears that north of the petitioner's house there is a plot of parti land which is claimed by both the complainant in the case and by the present petitioners. On this land and close to the wall of the petitioners' house the complainant dug the foundation for a cowshed. After the trench for the foundation had been dug, and while the complainant was away, the two petitioners came and began to fill up the ditch, one with a kodali and the other with his hands. While they were doing this, the complainant came on the scene and struck the petitioner Jago with a lathi. Hurnandan went into his house and fetched out a spear with which he attacked the complainant and some others who were with him, and then ??? ago went into the house and fetched out a word with which he also attacked them. The result was that the complainant and his friends were severely wounded. Three points are urged before us on behalf of the petitioners. First, that they have not exceeded the right of private defence; secondly, that the procedure adapted in the trial is wholly illegal, and thirdly, that the trying Magistrate went and inspected the locality and, without making any report of his proceedings or what he saw, has imported the result of his inspection into his judgment. There does not appear to be any force in the first contention. It may be that the petitioners have a claim to the land upon which the complainant dug the trench, but they had no right to go into their house and fetch out a deadly weapons and with them to attack the complainant.
2. On the second point however it appears to me that the petitioners must succeed. What happened is this: The case was first taken up by the Asst. Magistrate Mr. Thadani and the whole of the prosecution witnesses were examined and cross-examined. At this stage Mr. Thadani was transferred and the Sub-divisional Officer withdrew the case to his own file. In accordance with their right under S. 350, the accused demanded a de novo trial. The trial was accordingly started again and was proceeded with by the Sub-divisional Magistrate, who examined some of the prosecution witnesses. Mr. Thadani then again returned to Monghyr and the Sub-divisional Magistrate retransferred the case to his file, with the direction that he was to take it up from the point where he, Mr. Thadani, had left it. This Mr. Thadani did.
3. He finished the trial and the petitioners were convicted and sentenced as has already been stated. The procedure adopted is wholly illegal. When the Sub-divisional Magistrate took the case on his own file and started the trial de novo, the proceedings before the Asst. Magistrate were wiped out and S. 350 gave the Asst. Magistrate no jurisdiction to proceed on the evidence which he had already recorded when the case was retransferred to him again. It is not a case covered by S. 350 at all. Consequently the question of material prejudice does not arise. In this view of the case it is unnecessary to consider the last point which has been urged. I would only say that the Asst. Magistrate should have made a record of what he observed and what be did at the time of the local inspection. The conviction and sentences must therefore be set aside and the case remanded for rehearing.
4. Adami, J.:— I agree.
V.S/R.K
5. Case remanded.