Bombay High Court
Pramod Radheshyam Agrawal And 11 ... vs Ashok Shyamsunder Zinzunwala And ... on 26 October, 2016
Bench: I.K. Jain
1 apl131.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO. 131 OF 2011
1) Pramod Radheshyam Agrawal,
adult, occupation : Service,
resident of Shegaon, District
Buldhana.
2) Shivprasad Shriniwas Padiya,
Adult, occupation : Trade,
3) Vijaykumar Rajkumar Choudhari,
Adult, occupation : Trade,
4) Sagar Rameshwar Modi,
Adult, occupation : Trade,
5) Jagdish Madanlal Khetan,
Adult, occupation : Trade,
6) Jagdish Ratanlal Agrawal,
Adult, occupation : Trade,
7) Kishor Bhailal Ganatra,
Adult, occupation : Trade,
8) Rajendra Dipchand Badjatya,
Adult, occupation : Trade,
9) Sanjaykumar Pralhadrai Agrawal,
Adult, occupation : Trade,
10) Narendra Harnarayan Karnani,
Adult, occupation : Trade,
11) Sachin Subhash Bafna,
Adult, occupation : Trade/Professor,
::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:56:34 :::
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12) Bhagatsingh Bhaulal Rajput,
Adult, occupation : Trade/Professor,
Nos. 2 to 12 residents of Khamgaon,
District Buldhana. ... Applicants
- Versus -
1) Ashok Shyamsunder Zinzunwala,
aged 42 years, occupation : business,
r/o Khamgaon (Bhasara Galli),
Tahsil Khamgaon, District Buldhana.
2)
P.S.O., Khamgaon.
State of Maharashtra, through
... Respondents
-----------------
Shri A.C. Dharmadhikari, Advocate for applicants.
Shri V.S. Giramkar, Advocate for respondent no.1.
Shri A.V. Palshikar, Additional Public Prosecutor for respondent
no.2.
----------------
Date of reserving the judgment : 19/10/2016
Date of pronouncing the judgment : 26/10/2016
CORAM : KUM. INDIRA JAIN, J.
DATED : OCTOBER 26, 2016
ORAL JUDGMENT :
By this criminal application, applicants are challenging
the order dated 11/1/2011 passed by the learned Judicial
3 apl131.11
Magistrate, First Class, Khamgaon below Exh. 154 and order dated
28/1/2011 below Exh. 163 in Summary Criminal Case No. 611/2008
and also order dated 18/2/2011 passed by the learned Ad hoc
Additional Sessions Judge, Khamgaon in Criminal Revision
No.15/2011 .
2) Facts giving rise to the application may be stated in
nutshell as under :
Respondent no.1 filed a private complaint alleging
therein that the applicants committed offences punishable under
Sections 463, 464, 465, 468 and 471 read with Section 34 of the
Indian Penal Code as they forged a document in Criminal Revision
No.52/2006 pending before the Additional Sessions Judge,
Khamgaon. The learned Judicial Magistrate, First Class issued
process against the accused for the offences punishable under
Sections 465 and 471 of the Indian Penal Code. Initially it was
registered as Regular Criminal Case No.88/2007 and later
re-numbered as Summary Criminal Case No.611/2008.
3) Accused appeared in pursuance to the process issued.
Substance of accusations was explained to them. Complainant
4 apl131.11
adduced his evidence. Statements of accused under Section 313 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as
"the Code") were recorded. Accused examined three witnesses in
support of their defence and one witness remained to be examined.
Thereafter, Presiding Officer of the Court was transferred and
another Judicial Officer took over the charge. Complainant filed an
application (Exh. 154) for de novo trial in view of change of the
Presiding Officer. This application was allowed.
4) On 21/12/2010 accused moved an application (Exh. 163)
for permanent exemption mainly on the ground that in view of the
order of de novo trial, it will take considerable time to conclude the
trial and since they are not disputing the identity, they may be
exempted from personal appearance in the Court. Vide order dated
28/1/2011, trial Court rejected the application. Accused challenged
the order in Criminal Revision No.15/2011. The learned Additional
Sessions Judge, Khamgaon dismissed the revision on 18/2/2011.
Being aggrieved by the orders on Exhs. 154 and 163, applicants are
invoking the jurisdiction of this Court under Section 482 of the Code.
5) It is the contention of the applicants that bar under
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Section 326(3) of the Code would not be attracted as evidence of
complainant and three witnesses examined on behalf of defence
came to be elaborately recorded by the trial Court. It is submitted
that the full scope to examine and cross-examine the witnesses was
given and the procedure adopted by the trial Court indicates that
substance in summary way was not recorded at the time of
recording evidence, but the evidence was recorded in a regular
course. In this background, applicants submit that the order
passed on Exh. 154 is mechanically passed and gross error is
committed as the case tried was not a summary trial, but as regular
summons case.
6) Regarding order on Exh. 163, applicants state that in
view of the order passed on Exh. 154, Court ordered de novo trial
and presence of applicants was not essential before the Court as
recording of evidence would have commenced from beginning.
Applicants state that they never evaded the trial and always
cooperated in the proceedings. A grievance is made that without
considering the fact that accused/applicants did not dispute the
identity, the learned Magistrate rejected the application for
permanent exemption.
6 apl131.11
7) Heard Shri A.C. Dharmadhikari, learned Counsel for
applicants, Shri V.S. Giramkar, learned Counsel for respondent no.1
and Shri A.V. Palshikar, learned Additional Public Prosecutor for
respondent no.2 State.
8) Shri Dharmadhikari, learned Counsel for applicants,
submits that the controversy in respect of de novo trial in such
cases is covered by the decision of the Hon'ble Supreme Court in
J.V. Baharuni and another vs. State of Gujarat and another
{(2014) 10 SCC 494} and of this Court in Shivaji Sampat Jagtap
vs. Rajan Hiralal Arora (2006 ALL MR (Cri) 2612). The learned
Counsel would submit that the test to be adopted for conducting trial
is whether only substance of evidence was recorded or whether
complete depositions of the witnesses in examination-in-chief,
cross-examination and re-examination were recorded. It is pointed
out that evidence of complainant and three witnesses examined on
behalf of defence in the present case would clearly indicate that the
evidence was recorded in detail and in verbatim giving all the minute
details and the opportunity of thorough cross-examination to the
witnesses was given. According to learned Counsel for applicants,
7 apl131.11
in such a situation, bar under Section 326(3) of the Code would not
be attracted as held by the Hon'ble Supreme Court and by this
Court.
9) On permanent exemption of the accused under Section
205 of the Code, it is stated on behalf of applicants that the order of
de novo trial was passed and, therefore, the trial was to commence
from the beginning. The learned Counsel submits that accused did
not dispute the identity and their presence was not at all necessary.
Considering the grounds raised in the application for permanent
exemption, trial Court ought to have granted permanent exemption
to the accused as it was open in law to secure their presence as
and when required.
10) Per contra, Shri Giramkar, learned Counsel for
respondent no.1, has raised a preliminary objection and submitted
that application is not maintainable as there is mis-joiner of cause of
actions. It is stated that the issues of de novo trial and permanent
exemption were not inter-connected and the orders were
independently passed on the separate applications. The learned
Counsel submits that in the present case, trial was a summary
8 apl131.11
trial and not as a summons case. It is stated that substance of
evidence came to be recorded by the trial Court, which would
indicate that bar under Section 326(3) of the Code was attracted
and the trial Court was right in passing the order of de novo trial.
So far as permanent exemption is concerned, it is pointed out that
presence of accused was necessary as the particulars of offences
were to be explained and evidence of witnesses was to be
recorded. The learned Counsel states that accused did not make
out a case for interference in the concurrent findings recorded by
the trial Court and revisional Court and seeks dismissal of the
present application.
11) With the assistance of the learned Counsel for the
parties, this Court has perused the evidence of complainant and
three witnesses examined on behalf of defence. It is apparent that
examination-in-chief, cross-examination and re-examination of the
witnesses came to be recorded. Number of documents came to be
exhibited in the evidence of witnesses. The evidence of
complainant runs into eight pages. In his examination-in-chief,
around eleven documents came to be exhibited. He was cross-
examined in detail. It further appears from the record of the trial
9 apl131.11
Court that complainant also examined Police Constable Dilip Singh
Rajput and this witness was also cross-examined by the defence.
Similarly, evidence of three witnesses examined by the defence was
elaborately recorded in verbatim giving full scope to the complainant
to cross-examine them. The Hon'ble Supreme Court in the case of
J.V. Baharuni and another (supra) issued certain directions in the
matter of determining whether it is a summary trial or summons
case trial in a particular case. Direction (vi) in paragraph 60.6
issued by the Hon'ble Supreme Court is as under :
"60.6. While examining the nature of the trial conducted
by the trial Court for the purpose of determining whether
it was summary trial or summons trial, the primary and
predominant test to be adopted by the appellate Court
should be whether it was only the substance of the
evidence that was recorded or whether the complete
record of the deposition of the witness in their chief-
examination, cross-examination and re-examination in
verbatim was faithfully placed on record. The appellate
Court has to go through each and every minute detail of
the trial Court record and then examine the same
independently and thoroughly to reach at a just and
reasonable conclusion."
12) In similar set of facts, this Court in Shivaji Sampat
Jagtap's case referred above observed in paragraph 20 as under :
"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 Sections
263 and 264 of the Code could be stated to have been
10 apl131.11
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 de novo. 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 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 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 de novo trial shall be necessary."
13) In the case on hand, as is evident from depositions of
complainant and the witnesses examined by the defence, the
full-fledged evidence was recorded. Number of documents were
exhibited. The evidence was not in the form indicated in Section 264
of the Code, i.e. in the form of substance of evidence. This clearly
shows that evidence recorded in the present case was not in a
summary way and it was not a summary trial, but the case was tried
as regular summons case. The impugned order passed below
Exh. 154 is thus contrary to the directions issued by the Hon'ble
Supreme Court and clear and unambiguous provisions of the Code.
11 apl131.11
14) This takes this Court to the preliminary objection raised by
respondent no.1 regarding joinder of two prayers in the application
(i) regarding de novo trial and (ii) regarding permanent exemption. It
is pertinent to note that application (Exh. 163) was submitted by the
accused on the ground that the Court has ordered de novo trial and
the trial was to commence since its inception. Since application for
permanent exemption (Exh. 163) was based on the order of the
learned Magistrate regarding de novo trial, this Court does not find
that clubbing of both the prayers would hit the maintainability of
application in any way. Even otherwise, since the order of de novo
trial needs to be quashed and set aside in view of the observations
made hereinabove, the point in respect of permanent exemption
would not survive. Needless to state that accused may have
liberty to move in future as and when occasion so arises.
15) In the light of the above circumstances, criminal
application deserves to be partly allowed. Hence, the following
order :
(i) Criminal application is partly allowed.
(ii) The impugned order dated 11/1/2011 passed by the
learned Magistrate, First Class, Khamgaon below Exh.154 in
12 apl131.11
Summary Criminal Case No.611/2008 is quashed and set
aside.
(iii) The trial Court is directed to proceed in accordance
with the law from the stage at which application (Exh. 154) was
filed by the complainant and decide the matter as expeditiously
as possible and in any case, within six months.
(iv) The cause to challenge the order dated 28/01/2011
below Exh. 163 in Summary Criminal Case No.611/2008
passed by the learned Judicial Magistrate, First Class,
Khamgaon does not survive in view of (ii) above, hence,
application to that extent stands disposed of.
(v) Rule is made absolute in the aforesaid terms with no
order as to costs.
JUDGE
khj
