N.S Subramania Ayyar v. Emperor

This is a petition by the complainant in C.C No. 978 of 1941 on the file of the Sub-Magistrate of Tiruvadanai. Two accused were charged in that case with having committed criminal breach of trust in respect of some jewels. They were convicted by the first Court. On appeal the Joint Magistrate of Devakottai acquitted them. The matter was taken in revision to this Court and the order of the Appellate Magistrate was reversed and he was asked to rehear the appeal. The Joint Magistrate was not able to rehear the appeal because the records in the case had been burnt when his Court was set fire to in August 1942, with the result that he found himself unable to go on with the appeal in the absence of the necessary papers. Certified copies of o the prosecution evidence were available, but that of the defence evidence was not available. The Magistrate had therefore no other course but to direct a de novo trial after having set aside the conviction. It is stated that the Magistrate was wrong in ordering a de novo trial as this Court had not directed such a course in the order of revision petition. But then it does not appear that this Court was appraised of the fact that the necessary records which the appellate Magistrate will have to look into were not available. If certified copies had been available, certainly the Appellate Magistrate would not be justified in setting aside the conviction and ordering a de novo trial. It is stated that the summary of the evidence as given in the Judgment as also in the notes which was prepared by counsel for the complainant could be looked into and the records re-constructed. But then such notes cannot be taken as containing everything that was stated by the witness.

In a criminal case, it is certainly not safe to dispose of a case, without having all the necessary materials. In these circumstances the only course open to the Magistrate was to have ordered a de novo trial and I therefore see no reason to interfere with the order directing a de novo trial. The petition is accordingly dismissed.

N.T.RPetition dismissed.