pradeep (self) 21 August 2014

From where higher court has to begin

Sir / Madam,

The police has ignored the fracture of victim and filed criminal case against the accused under lighter sections of 448 & 323 and the case is initially posted at 2nd class judicial magistrate. Now the case has been transferred to the court of junior civil judge and the section is altered to 326 IPC.

However, chief examination of the complainant is partly done at the lower court. As the prosecutor colluded with the accused , the chief examination which is partly done is not specific.

My doubt is from where the higher court has to begin with. Is it mandatory for the higher court to begin the chief examination from the beginning as the lower court has no jurisdiction in trying the case. Or else is it necessary for the higher court to restart the proceedings from where the lower court stopped. Please cite case laws of higher courts.

Thanks in advance.

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1 Replies

Ashok, Advocate (Lawyer at Delhi) 23 August 2014

What does the order of transfer of case say? Does it say a fresh or de novo trial or the continuation of the same trial? Who has ordered the transfer?

In any event, if the new court begins the case afresh, your problem is solved since the witness will be examined again. On the other hand, if the trial is continued from where it was left by the first court, you may try to use provisions of Section 311 Cr.P.C. to recall or re-examine a witness who has already been examined. In this situation, if so needed, you can even approach High Court under Section 482 Cr.P.C. for ordering a fresh (de novo) trial in the interests of justice and to secure the ends of justice.