Suresh Vishwanath Kumavat vs Kailas Gokulsheth Kharote
2013 Latest Caselaw 325 Bom

     aaa/-                                 1                            WP 414.13.odt

             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.-

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(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

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(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

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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

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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

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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 ...