Bombay High Court
Ulhas Fulchand Rathod vs The State Of Maharashtra on 17 June, 2016
Bench: R.V. Ghuge
*1* 904.cr.wp.216.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 216 OF 2014
Ulhas s/o Fulchand Rathod,
Age : 43 years, Occupation : Nil,
R/o at post Ghatangri Tanda No.1,
Taluka and District Osmanabad.
...PETITIONER
-VERSUS-
The State of Maharashtra.
ig ...RESPONDENT
...
Advocate for Petitioners : Shri Deshmukh Sachin S.
APP for Respondent: Shri S.G.Karlekar.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 17th June, 2016
Oral Judgment:
1 Rule. Rule made returnable forthwith and heard finally by
consent of the parties.
2 The Petitioner is aggrieved by the order dated 26.11.2012
passed by the learned Judicial Magistrate First Class, Osmanabad by
which the learned Magistrate has directed a de-novo trial in Summary
*2* 904.cr.wp.216.14
Criminal Case No.597/2008.
3 The Petitioner submits that by lodging of Crime No.117/2008
under Sections 143, 294, 341, 504 and 506 of the Indian Penal Code r/w
Section 135 of the Bombay Police Act, the Petitioner is being tried in SCC
No.597/2008. Though the case was to be tried as a summary case, the
learned Magistrate Shri S.K.Karande had recorded the examination-in-
chief of the first witness on behalf of the prosecution and the said witness
was cross-examined at length by the Petitioner. Similarly, the prosecution
had produced three witnesses, who were examined followed by cross-
examination by the Petitioner. The recording of oral evidence was
concluded on 15.11.2011.
4 Shri Deshmukh, the learned Advocate for the Petitioner,
submits that after recording of oral evidence in the form as is noted above,
the learned Judge was transferred and a new Presiding Officer took
charge. Consequentially, the application Exhibit-54 was moved by the
prosecution seeking a de-novo trial as the case is of a summary character.
The Petitioner submitted his reply at Exhibit-55 and opposed the
application on the ground that the same is unsustainable and deserves to
be rejected. It was also pointed out that the matter was posted for
advancing final arguments. The Petitioner/ accused will have to face a de-
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novo trial and suffer rigours of litigation without any justifiable reason.
5 Shri Deshmukh submits that by the impugned order dated
26.11.2012, the application Exhibit-54 filed by the prosecution had been
allowed primarily on the ground that the predecessor learned Judge has
recorded the plea and evidence and the accused is to be tried summarily.
Section 326(3) of the Code of Criminal Procedure would become
applicable and hence, the case would have to be re-tried. The learned
Magistrate, therefore, ordered issuance of summons to the witnesses who
were already examined, for de-novo trial.
6 Shri Deshmukh places reliance on the reported judgment of
this Court in the matter of Shivaji Sampat Jagtap vs. Rajan Hiralal Arora,
2007 Cri.L.J. 122, and submits that the ratio laid down in this judgment
is practically tailor-made for this case and the same is squarely applicable.
He specifically relies upon paragraphs 3 to 6, 10 to 12, 14 to 16 and 20 of
the said judgment.
7 The learned APP has supported the impugned order
contending that once the case is being tried as summary case, Section
326(3) of the Code of Criminal Procedure would have it's full applicability
and hence, the impugned order passed by the learned Judge is
*4* 904.cr.wp.216.14
sustainable.
8 I have considered the submissions of the learned Advocates.
9 Section 326 of the Code of Criminal Procedure reads as
under:-
"326. Conviction or commitment on evidence partly
recorded by one Judge or Magistrate and partly by
another:-
(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 witness 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
*5* 904.cr.wp.216.14
submitted to a superior Magistrate under section
325."
10 It is, therefore, trite law that the conviction or commitment
on evidence partly recorded by one judge and partly recorded by another
judge, would not be affected by the change in the Judge/ Magistrate.
However, the provisions under Section 326(1 & 2) would not be
applicable to the summary cases or to the cases in which the proceedings
have been stayed under Section 322 or have been submitted to a superior
Magistrate under Section 325. Learned APP submits that in the event of
summary trial in the case where the statement of the accused is recorded
in a manner as is provided, it would be open to the Magistrate to order a
de-novo trial.
11 It, therefore, has to be seen as to whether, the trial being
conducted in this matter was in fact a summary trial or not. The proviso
below Section 143(1) of the Negotiable Instruments Act, 1881 in the case
of summary trial would empower the Magistrate to pass sentence of
imprisonment. The second proviso empowers the Magistrate to convert
the summary case into full trial in the matter. This was the issue before
this Court in Shivaji Sampat Jagtap judgment (supra) and as such, the
conclusion of this Court in the said case could have limited applicability in
this matter considering that Section 143 of the Negotiable Instruments
*6* 904.cr.wp.216.14
Act, 1881 is not at issue.
12 In the instant case, though the case has been registered as a
summary case, regular recording of oral evidence of the witnesses of the
prosecution was done. The cross-examination was also conducted. All the
witnesses of the prosecution were before the Court and had suffered cross-
examination at the hands of the Petitioner/ accused. No provision or
judicial pronouncement is cited to indicate that in a summary trial, the
moment the Judge or Magistrate changes, retires or is transferred, the trial
will have to be conducted "de-novo". This fact situation would have an
impact on the result of this petition.
13 Insofar as the ratio laid down in Shivaji Sampat Jagtap
(supra) is concerned, the facts set out in paragraphs 3 and 4 would
indicate that the Magistrate was conducting the trial under Section 143 of
the Negotiable Instruments Act, 1881. The objection was raised under
Section 326(3) of the Code of Criminal Procedure seeking de-novo trial on
the ground that the evidence was recorded by one Magistrate and the
judgment was delivered by another. This case was considered by the
learned Sessions Court in appeal.
14 The conclusions drawn by this Court in Shivaji Sampat Jagtap
*7* 904.cr.wp.216.14
(supra) were primarily based on the effect of Section 143 of the
Negotiable Instruments Act, 1881. Nevertheless, considering the effect of
Section 326 of the Code of Criminal Procedure in paragraph 14, this Court
concluded in paragraphs 15 and 16 of the judgment that if the Magistrate
records the evidence as is done in a regular summons case, the succeeding
Magistrate can act on the evidence so recorded by his predecessor or
partly recorded by his predecessor or partly recorded by himself as is
provided in Section 326(1) of the Code of Criminal Procedure. It would,
therefore, be apposite to reproduce paragraphs 15 and 16 of Shivaji
Sampat Jagtap (supra) as under:-
"15. Ordinarily, once the evidence within the meaning of
Section 3 of the Indian Evidence Act is recorded by the
Court having jurisdiction to do so, the
deposition/statements made by the witness would not
loose its character of being evidence in judicial
proceedings and can be used for adjudication of the
rights of the parties. Therefore, if the Magistrate,
records the evidence, as is done in regular summons
case the succeeding Magistrate can act on the evidence
so recorded by his predecessor or partly recorded by
his predecessor and partly recorded by himself as
provided for in Sub-section (1) of Section 326 of the
Code.
16. Broadly speaking, a summary trial is an abridged
form of the regular trial and is resorted to in order to
save time in trying "petty case". It is essentially a
speedy trial dispensing with unnecessary formalities
or delays and giving discretion to the Magistrate to
try or not to try an offence, triable summarily, in a
summary manner. Section 143 of the Act empowers
court to try cases under Section 138 of the Act in a
*8* 904.cr.wp.216.14
summary way. It starts with non-obstante clause
carving out an exception to the provisions of the Code.
Sub-section (1) thereof, however, empowers the
Magistrate to follow the provisions of Section 262 to
265, as far as may be, for trying the cases under
Section 138 of the Act. The phraseology "as far as
may be" employed in Sub-section (1) gives an option
to the Magistrate to depart from the procedure
contemplated under Sections 262 to 265 of the Code.
Thus, it is not mandatory for the Magistrate to follow
the procedure contemplated under Sections 262 to
265 of the Code and it is left to the discretion of the
Magistrate to follow the procedure of summary trial,
contemplated under those provisions to the extent it is
possible. The second proviso to Sub-section (1) of
Section 143 further empowers the Magistrate in a
case which is being tried in a summary way, if it
appears to him, to recall any witness who may have
been examined and proceed to hear or re-hear the
case in the manner provided by the Code. This is an
indicator that the choice is left to the Magistrate to
either try the case strictly by following the procedure
contemplated by sections 262 to 265 of the Code or to
adopt the procedure provided by the Code."
15 Insofar as the issue as to whether, the Magistrate can consider
the conversion of summary trial into regular trial is concerned, the said
aspect was gone into by this Court in Shivaji Sampat Jagtap (supra). While
upholding the powers of the Magistrate to recall any witness under
Section 260(2) of the Code of Criminal Procedure, it was held that, that
could happen if it appears to the Magistrate that the nature of the case is
such that it was undesirable to try it summarily and proceed to conduct it
in regular trial.
*9* 904.cr.wp.216.14
16 Section 260 of the Code of Criminal Procedure reads as
under:-
"260. Power to try summarily :-
(1) Notwithstanding anything contained in this Code-
(a) Any Chief Judicial Magistrate;
(b) Any Metropolitan Magistrate;
(c) Any Magistrate of the first class specially
empowered in this behalf by the High Court,
may if he thinks fit, try in a summary way all
or any of the following offences -
(i) Offences not punishable with death, imprisonment
for life or imprisonment for a term exceeding two
years;
(ii) Theft under section 379, section 380 or section
381 of the Indian Penal Code (45 of 1860), where the
value of the property stolen does not exceed two
thousand rupees;
(iii) Receiving or retaining stolen property, under
section 411 of the Indian Penal Code (45 of 1860),
where the value of the property does not exceed two
thousand rupees;
(iv) Assisting in the concealment or disposal of stolen
property, under section 414 of the Indian Penal Code
(45 of 1860) where the value of such property does
not exceed two thousand rupees;
(v) Offences under sections 454 and 456 of the Indian
Penal Code (45 of 1860);
(vi) Insult with intent to provoke a breach of the
peace, under section 504 and [criminal intimidation
punishable with imprisonment for a term which may
extend to two years or with fine, or with both], under
section 506 of the Indian Penal Code (45 of 1860);
(vii) Abetment of any of the foregoing offences;
(viii) An attempt to commit any of the foregoing
offences, when such attempt is an offence;
(ix) Any offence constituted by an act in respect of
which a complaint may be made under section 20 of
the Cattle-Trespass Act, 1871 (1 of 1871).
*10* 904.cr.wp.216.14
(2) When, in the Course of a summary trial it appears to
the Magistrate that the nature of the case is such that
it is undesirable to try it summarily, the Magistrate
shall recall any witnesses who may have been
examined and proceed to re-hear, the case in the
manner provided by this Code."
17 In the instant case, going by the form in which the witnesses
of the prosecution were examined and cross-examined by the Petitioner/
accused, though the learned Advocates are unable to point out a formal
order passed by the learned Magistrate to consider the case as a regular
case and not by a summary trial, the effect of examination and cross-
examination of the witnesses indicates that a full trial was undertaken by
the learned Magistrate. As such, the observations of this Court in Shivaji
Sampat Jagtap (supra) in paragraphs 17, 18 and 20 would be applicable
to this case and which read thus:-
"17. Sub-section(2) of Section 260 empowers the
Magistrate to recall any witness, in the course of
summary trial, if it appears to him that the nature of
the case is such that it is undesirable to try it
summarily, and examine and proceed to re-hear the
case in the manner provided by the Code. This
provision is analogous to Section 259 of the Code as
also to the second proviso to Sub-section (1) of
Section 143 of the Act. Section 259 of the Code
empowers the Court to convert summons cases into
warrant cases. Whereas the second proviso to Sub-
section (1) of Section 143 of the Act empowers the
Court to convert summary trial into summons case. It
is thus clear that the expression "as far as may be"
*11* 904.cr.wp.216.14
employed in Sub-section (1) of Section 143 and the
second proviso to Sub-section (1) of Section 143
confer sufficient powers on the Court, to try the case
in the manner provided by the Code i.e. the procedure
ordinarily followed for trying regular summons case.
It is common experience that no case under Section
138 of the Act is conducted by the Court, strictly in
summary way as provided for in Chapter XXI of the
Code and that cannot be overlooked while dealing
with each case where the question, that has been
raised in this case, is raised by the accused.
18. Under Section 263 in Chapter XXI of the Code, in
every case tried summarily, the Magistrate shall enter,
in such form as the State Government may direct, is
expected to "maintain the record" as mentioned in
Clause (a) to (j) of that section. Section 264 provides
that in every case tried summarily in which the
accused does not plead guilty, the Magistrate shall
record "the substance of the evidence" and a judgment
containing "a brief statement of the reasons" for the
finding. Thus, the indicator to know as to whether the
case under Section 138 of the Act has been or is being
tried summarily so as to attract the provisions
contained in Sub-section (3) of Section 326 of the
Code is the compliance of Section 263 and 264 of the
Code. In other words, a case, which is triable as
summarily, and in which the record of the
proceedings has been prepared in accordance with the
provisions of Section 263 and 264 of the Code could
be stated to have been tried summarily for the
purpose of Section 326(3) and in that case the
evidence recorded by one Magistrate cannot be read in
evidence by succeeding Magistrate. The succeeding
Magistrate, however, in a case, where the procedure
contemplated under Sections 263 and 264 of the Code
in particular has not been followed, he need not hold
a trial denovo. In short, if no record as per Sections
263 and 264 has been or is being maintained by the
Magistrate and the case has been or is being tried as a
regular summons case and not tried in a summary
way as contemplated under Sections 262 to 265 of
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the Code, such case shall not be considered as tried in
summary way, though triable summarily as provided
for under Sub-section (1) of Section 143 of the Act, so
as to attract the provisions of Section 326(3) of the
Code. Therefore, the evidence recorded by one
Magistrate in such a case may be legally read in
evidence by his successor and no denovo trial shall be
necessary. From the above discussion, the following
principle broadly emerges: a case under Section 138
of the Act, which requires to be tried in a summary
way as contemplated under Section 143 of the Act, is
in fact, was tried as regular summons case it would
not come within the purview of Section 326(3) of the
Code. In other words, if the case in substance was not
tried in a summary way, though was triable
summarily, and was tried as regular summons case, it
need not be heard denovo and the succeeding
Magistrate can follow the procedure contemplated
under Section 326(1) of the Code. However, where a
case is tried in a summary way by following the
procedure contemplated by the provisions of Chapter
XXI of the Code and in particular sections 263 and
264 therein, alone is intended to be excluded from the
purview of Section 326(1) of the Code.
20. In the instant case the entire evidence was recorded by
Mr. Jamadar, Metropolitan Magistrate, 17th Court,
Mazgaon and the judgment was delivered by the
learned Magistrate Mr. Shaikh. The record reveals
that the petitioner-complainant gave evidence on
affidavit as provided for in Sub-section (1) of Section
145 of the Act. All the documents referred to in the
affidavit in examination-in-chief were exhibited by the
learned Magistrate. If further appears that after the
evidence of the complainant was closed the
respondents-accused also adduced evidence in defence.
The evidence recorded by the learned Magistrate was
full fledged evidence led by the parties and admittedly,
it was not in the form indicated in Section 264 of the
Code. In other words, the evidence recorded in the
present case clearly indicate that the case was not
tried in summary way and was in fact tried as regular
*13* 904.cr.wp.216.14
summons case though it was triable summarily under
Section 143 of the Act. In the circumstances the
impugned judgment deserves to be quashed and set
aside. Order accordingly. The criminal appeal filed by
the respondents-accused stand restored to file. The
Sessions Court is directed to decide the appeal afresh
as expeditiously as possible and preferably within a
period of six months from the date of receipt of this
judgment."
18 In the light of the above, I find that the impugned order is
rendered unsustainable since the learned Judge failed to consider that the
case was not being tried as a summary case, but was being tried as a
regular case. Had this aspect been considered by the learned Magistrate,
in my view, the impugned order would not have been passed in the light
of the law laid down in Shivaji Sampat Jagtap (supra).
19 In view of the above, this Criminal Writ Petition succeeds. The
impugned order dated 26.11.2012 passed below Exhibit-54 is quashed
and set aside. The application Exhibit-54 stands rejected. Exhibit-55 is,
therefore, rendered infructuous and is disposed of.
20 It, however, be noted that in the event the learned Magistrate
desires to exercise his powers for justifiable reasons under Section 260(2)
of the Code of Criminal Procedure, he may do so in accordance with law.
*14* 904.cr.wp.216.14
21 Considering that the case is pending from 2008, I deem it
proper to expedite the hearing of SCC No.597/2008. The learned
Magistrate shall endeavour to decide the same as expeditiously as possible
and preferably on or before 31st January, 2017.
22 Rule is, therefore, made absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
