Bombay High Court
Kedar Rayjirao Salunke vs The State Of Maharashtra on 8 December, 2021
Bench: S. K. Shinde
WP-2807-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Writ Petition No. 2807 / 2019
Kedar Rayjirao Salunke
Age : 38 years, Occ.-Agriculturist,
Residing at Post-Dugaon,
Tal-Biloli, Dist.-Nanded. .. Petitioner
Versus.
The State of Maharashtra
[Through the Shivajinagar Police Station,
Pune] .. Respondent
****
Mr. Lokesh D. Zade, Advocate for the Petitioner.
Smt. S.V. Sonawane, APP for State.
****
CORAM : SANDEEP K. SHINDE J.
RESERVED ON : 2nd DECEMBER, 2021.
PRONOUNCED ON : 8th DECEMBER, 2021.
WP-2807-2019.doc
Judgment : -
1. Rule.
2. Rule made returnable forthwith. Heard fnally with
the consent of the parties.
3. This petition under Article 227 of the Constitution of
India challenges the order dated 6th March, 2019 below
Exhibit-47 passed by the Additional Chief Judicial Magistrate,
First Class, Pune in Regular Criminal Case No. 3736/2015 by
which the learned Magistrate shifted the forum of trial of the
Petitioner-Accused, from the Court of Judicial Magistrate, First
Class to the Court of Sessions, in wake of state amendment -
Maharashtra Act of 40 of 2018.
Background facts :
4. Petitioner-Accused is being, prosecuted for the
offences punishable under Section 353, 504, 506 (2) of the IPC
in R.C.C. No. 3637/2015, which arose from Crime No. 232/2014
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dated 6th December, 2014. The evidence in the trial was almost
over and when the trial reached the stage of fnal arguments,
by the Act of 40 of 2018; The Government of Maharashtra has
changed the forum of Court trying the offences under Section
332, 353 of IPC from Magistrate of First Class to Court of
Sessions. In effect the offence under Section 353 of IPC is
classifed as, cognizable, non-bailable, triable by Sessions and
made punishable with imprisonment for fve years or fne or
both. Whereafter in view of the amendment, Prosecution
moved an application under Section 323 of Cr.P.C. for
committing the proceedings in the R.C.C. No. 3637/2015 to the
Court of Sessions. The learned Magistrate committed the case
to the Court of Sessions and directed Petitioner to remain
present before the Sessions Court. This order is assailed in this
petition.
5. Heard Counsel for the Petitioner and Prosecutor for
the State.
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6. Mr. Lokesh Zade appearing for the Petitioner, in all
fairness submitted that in view of the judgment of the Apex
Court in the case of Ramesh Kumar Soni Vs. State of Madhya
Pradesh, (2013) 14 SCC 696; and the judgment of this Court in
the case of Shyamrao Vithoba Pillare Vs. State of Maharashtra,
2019 ALL MR Cri. 704, petitioner shall submit himself to the
jurisdiction of Court of Sessions at Pune. Yet, Mr. Zade,
expressed his concern over and in respect of powers, of the
Court under Section 326 of Cr.P.C., which empowers succeeding
judge to record the evidence de novo. Mr. Zade, therefore
submitted that, if evidence is recorded afresh, it may cause
serious prejudice to the accused. Mr. Zade therefore argued
that, let the Sessions Judge act on the evidence, recorded by
the learned Chief Judicial Magistrate, for passing the order of,
conviction or acquittal.
7. Ms. Sonawane, learned Public Prosecutor would
submit that, under Section 326 of Cr.P.C., the succeeding Judge
to whom the case has been committed is empowered to re-
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summon, any such witnesses if the succeeding Judge is of the
opinion that examination of any of the witnesses, whose
evidence has already been recorded is necessary in the
interest of justice. Learned APP would therefore rely on the
proviso to Section 326(1) of the Cr.P.C. which reads as under;
"326. Conviction or commitment on evidence partly recorded by
one Magistrate and partly by another-
(1) Whenever any 1[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 1[Judge or Magistrate] who has and who exercises such
jurisdiction, the 1[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 1[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."
. Ms. Sonawane, learned APP, thus argued that statutory
powers of the succeeding Judge under Section 326 of the
Cr.P.C., cannot be 'curtailed' as suggested by Mr. Zade, learned
Counsel for the petitioner.
8. I have carefully considered the submissions of Counsel for
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the parties. It may be stated that in the case in hand the trial
has reached the state of fnal argument. Undoubtedly, proviso
to Section 326 empowers the succeeding Judge to re-summon
the witnesses for their further examination, if he is of opinion
that further examination is necessary in the interest of justice.
It may, be stated that in the case of Ramesh Kumar Soni
(supra), question that had arisen before the Apex Court was;
"Whether the cases pending before the Judicial Magistrate,
First Class, in which evidence, partly or wholly has been
recorded, and now have been committed to the Court of
Sessions, are to be tried de-novo or should be remanded
back to the Judicial Magistrate, First Class, for further
trial ?"
The Apex Court, by referring to judgment in the case of Nani
Gopal Mitra Vs. State of Bihar AIR 1970 SC 1636; held that;
"amendment relating to Procedure operated
retrospectively, subject to the exception, that whatever be
the procedure which was correctly adopted and
proceedings concluded under the old law the same cannot
be reopened for the purpose of applying of new procedure".
. However, these observations were made in context of
facts in the judgment of the Full Bench of High Court of
Madhya Pradesh, wherein it was held that, amended
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provisions were in-applicable, to pending cases. The Apex
Court thus held in Paragraph No. 21 in Ramesh Kumar Soni
(supra) that,
"21. The upshot of the above discussion is that the view taken by
the Full Bench holding the amended provision to be inapplicable to
pending cases is not correct on principle. The decision rendered by
the Full Bench would, therefore, stand overruled but only
prospectively. We say so because the trial of the cases that were sent
back from the Sessions Court to the Court of the Magistrate, First
Class under the orders of the Full Bench may also have been concluded
or may be at an advanced stage. Any change of forum at this stage in
such cases would cause unnecessary and avoidable hardship to the
accused in those cases if they were to be committed to the Sessions for
trial in the light of the amendment and the view expressed by us."
9. Thus, terms of the provision, of Section 326 of the
Cr.P.C. and the law enunciated by the Hon'ble Apex Court in the
case of Ramesh Kumar Soni (supra), Nani Gupta Mitra (supra)
I hold; 'that if succeeding judge is of opinion, that, if procedure
followed while conducting the trial was incorrect resulting into
or causing prejudice to the rights of parties and/or when
further examination of the witnesses, whose evidence has
already been recorded is necessary in the interest of justice, he
may re-summon them and examine such witnesses."
10. That Petitioner has not pressed the relief in terms of
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prayer clause 'a'; (i.e. change of Forum), but since has raised
the issue relating to powers of succeeding judge to record de
novo evidence, I have answered that point. In terms thereof,
Petition is disposed of.
(SANDEEP K. SHINDE, J.)
Digitally
signed by
NEETA
NEETA SHAILESH Najeeb
SHAILESH SAWANT
SAWANT Date:
2021.12.08
16:39:51
+0530
