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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 414 OF 2013
SURESH VISHWANATH KUMAVAT
age 45 years, Occ. Service,
R/o Dag Bangla Road,
Front of Rajesh Medical Vaijapur,
Tq. Vaijapur, Dist. Aurangabad. Petitioner.
Original accused.
VERSUS
1.
KAILAS GOKULSHETH KHAROTE
age 48 years, Occ. Business,
R/o Gangapur Road Vaijapur
Tq. Vaijapur Dist. Aurangabad.
2. The State of Maharashtra,
through PP Aurangabad.
...
Mr. L.M. Kulkarni Advocate for Petitioner
Mr. M.G.Deokate advocate for respondent no.1
Mr.P.N.Muley, APP for respondent no.2 - State
...
CORAM : ABHAY M. THIPSAY, J.
Dated: December 11, 2013 ...
ORAL ORDER :-
1. Rule. By consent, rule made returnable forthwith.
Respondents waive service. By consent, heard finally.
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2. The petitioner is the accused in SCC No.449/2010, pending before the Judicial Magistrate First Class, Vaijapur. The said case is in respect of an offence punishable u/s 138 of the Negotiable Instruments Act. It has been filed by the respondent no.1 herein.
3. For the sake of clarity, the petitioner shall hereinafter be referred to as 'the accused' and the respondent no.1 as 'the complainant'.
4. The entire evidence adduced during the trial was recorded by one Magistrate. The examination of the accused u/s 313 of the Code was also done by the same Magistrate.
Arguments were also heard by the same Magistrate and the case was kept for pronouncement of judgment. Thereafter, the learned Magistrate was transferred to some other Court. The successor Magistrate passed an order which reads as under :-
"Summary case. Try de novo as Regular Summons Case."
5. The petitioner is aggrieved by the said order and has approached this Court invoking its Constitutional jurisdiction and inherent powers praying that said order be quashed and set aside.
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6. I have heard Mr. L.M.Kulkarni, the learned counsel for the petitioner - accused and Mr.M.G.Deokate the learned counsel for the respondent no.1 - the complainant.
7. The main contention advanced by the learned counsel for the petitioner is that, the Magistrate committed an error in directing a de novo trial to be held as the case was not being tried Summarily. According to him, though the complaint was titled as 'summary case', it was actually being tried as a Regular Summons Case. As such, it was illegal on the part of the learned Magistrate to have passed an order directing a de novo trial.
8. The learned counsel for the complainant submitted that the order passed by the learned Magistrate is legal.
9. I have considered the matter.
10. The controversy is about applicability of the provisions of sub Section (1) of Section 326 of the Code of Criminal Procedure. Section 326 of the Code reads as under :-
326.Conviction or commitment on evidence partly recorded by one [Judge or Magistrate] and partly by another.-
::: Downloaded on - 23/12/2013 20:34:27 :::aaa/- 4 WP 414.13.odt (1) Whenever any Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself:
Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.
(2) When a case is transferred under the provisions of this Code from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section (1).
(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 322 or in which proceedings have been submitted to a superior Magistrate under section 325.
11. It is at once clear that this Section has been enacted by way of an exception to the general rule, that 'he who hears must decide.' Sub-section (1) of Section 326 permits a successor judge or Magistrate to act on the evidence recorded by his predecessor. Thus, sub section (1) is an enabling provision. Sub section (3) of section 326 lays down that provisions of sub-section ::: Downloaded on - 23/12/2013 20:34:27 ::: aaa/- 5 WP 414.13.odt (1) and (2) of Section 326 shall not apply to summary trials. In other words, in case of cases being tried summarily, the Judge or Magistrate shall not be entitled to act on the evidence recorded by his predecessor.
12. In the case of Nitinbhai Saevatilal Shah and another Vs. Manubhai Manjibhai Panchal and another reported in 2011 ALL SCR 2130, Their Lordships of the Supreme Court of India had an occasion to consider the provisions of Section 326 of the Code, and upon such consideration, Their Lordships categorically held that, the prohibition contained in sub Section (3) of Section 326 of the Code is absolute and admits of no exception.
Their Lordships held that in case of a summary trial, the successor Magistrate would not be competent to act on the evidence recorded by his predecessor and would be required to hold a de novo trial.
13. The learned counsel for the petitioner has drawn my attention to another decision delivered by the Supreme Court of India in Criminal Appeal Nos.968-971 of 2013 (arising out of ::: Downloaded on - 23/12/2013 20:34:27 ::: aaa/- 6 WP 414.13.odt SLP (C) Nos.4381-4384/2012). With reference to the observations made in paragraph No.4 of the judgment, he submitted that prohibition to act on the evidence recorded by the predecessor judge or Magistrate would not apply if the case is, in fact not being tried summarily.
14. In my opinion, a deeper discussion on this aspect is not necessary. It is because, whatever may be the legal position, there is no requirement that a Judge or Magistrate must act on the evidence recorded by his predecessor. As aforesaid, section 326 (1) is an exception to the general rule that he who hears must decide and accordingly permits the successor judge or Magistrate to act on the evidence recorded by his predecessor. It does not compel a judge or Magistrate to act on the evidence recorded by his predecessor. The legal position is thus, that the decision in that regard is left to the successor Judge of Magistrate. That he is not disqualified from acting on the evidence recorded by his predecessor does not mean that he is compelled to act on that evidence and is precluded from hearing the case de novo.
15. In the instant case, even arguments had been ::: Downloaded on - 23/12/2013 20:34:27 ::: aaa/- 7 WP 414.13.odt advanced before the predecessor Magistrate and the case had been kept for pronouncement of judgment. It appears that, since arguments had already been advanced, successor Magistrate had to keep the matter for arguments once again. If under the circumstances, he thought it necessary to have a de novo trial, he cannot be said to have committed any illegality. He cannot be said to have acted beyond the jurisdiction conferred upon him by law, so as to warrant interference in the present writ petition.
16. The only apprehension expressed by the learned counsel for the petitioner is that, a de novo trial might be used by the complainant for filling in the lacunae in his case. It is pointed out to me that the complainant had made an application for recalling him which was turned down and challenge to that order was also turned down by this Court. It, therefore, does appear that the complainant wanted to have himself examined once again, but such a prayer of the complainant was not granted by the Magistrate and by this Court also when the said order of the Magistrate was challenged before this Court. (Cri WP No.203/2012 decided on 25.4.2012). However, the apprehension that under ::: Downloaded on - 23/12/2013 20:34:27 ::: aaa/- 8 WP 414.13.odt these circumstances complainant would utilize this opportunity to fill in the lacunae in his case is not sound, in as much as the learned Magistrate would be competent to appreciate the evidence in a proper manner, and keeping in mind the attempt to improve over his initial version, if any made by the complainant. That would be a matter to be considered by the Magistrate while appreciating the evidence. Only because of that, the order directing of a de novo trial cannot be said to be patently illegal or without jurisdiction.
17. Moreover, the learned counsel for the complainant states that the complainant does not want or require a fresh affidavit of evidence in lieu of examination-in-chief to be filed in the matter.
18. Under these circumstances, no interference in exercise of the Constitutional jurisdiction of this Court is warranted.
19. The Petition is rejected with the aforesaid observations.
( ABHAY M. THIPSAY ) JUDGE ...
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