Diwakar & Ors. vs The State (Nct Of Delhi)
2001 Latest Caselaw 855 Del

ORDER

Case Note:

Criminal Procedure Code, 1973 - Section 326--Conviction on evidence recorded by two different Magistrates--For expedient disposal of the pending cases and to avoid fresh trial, successor Judge is empowered to pronounce judgment--Recommended by law commission--Petition for transfer under Section 407 Cr.P.C. misconceived, hence dismissed.

Held :

It has to be noted that Section 326 itself observes that if the successor is of the 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 for further examination or cross--examination or re--examination, as the case may be.

Arijit Pasayat, C.J.

1. This application under Section 407 of the Code of Criminal Procedure ('Code' for short) is for transfer of the case relating to FIR No. 179/97, u/s 302/34 IPC, presently pending trial before Shri D.C.Anand, Additional Sessions Judge, Karkardooma courts, Delhi, to the court of Shri Ajit Bharihoke, presently presiding Judge, MACT, Karkardooma Courts, Delhi. The main ground on which such a prayer has been made is that prosecution as well as defense evidence has been closed and statement of the accused has been recorded in terms of Section 313 of the code and, therefore, trial is practically over. Since the evidence has been recorded by Shri Bharihoke, it is just and proper that finality to the trial should be given by him.

2. When the matter was placed before the learned Single Judge, it was noticed that in another matter i.e. Crl.M.(M) No. 3174/2000, a reference has been made to a larger Bench, doubting the correctness of view expressed by another learned Single Judge in Sushil Sharma v. State [Crl.M.(M) No. 3202/2000], accepting an identical prayer. Learned Single Judge hearing the present matter was of the view that scope and ambit of Section 326 of the Code was not kept in view while the matter was decided in Sushil Sharma's case (supra).

3. We had occasion to deal with a similar prayer in S. Muthukrishnan & Anr. V. Government of National Capital Territory of Delhi & Ors. [CWP No. 389/2001] which was decided on 19th April, 2001. It was, inter alia, observed that "There is no provision in any law which permits judgment/order after he has been transferred. In fact, such a course would be against the legislative intent reflected in Section 326 of the Code. It is not in dispute that the present incumbent is empowered to deal with the matter". It has to be noted that in several other cases, for example Chander Prakash & Ors. V. State 1995 111 AD (Delhi) 578, similar prayer was rejected on the ground that every presiding officer is expected to act fairly and impart justice and that no prejudice would be caused to the accused if the case is decided by the successor judge.

4. Learned counsel appearing for the petitioner, with reference to Section 407(1)(c), prays that the evidence of the parties having already been recorded, transfer can be directed in the interests of justice. Great emphasis is laid on the view expressed in Sushil Sharma's case (supra).

5. It is to be noted that National Capital Territory of Delhi is divided into nine separate police and revenue districts. The cases pertaining to New Delhi, South Delhi and south-west districts are dealt with and are tried in Patiala House Courts, New Delhi; cases pertaining to east districts are tried at Karkardooma Courts, Delhi and cases pertaining to the remaining districts are tried and dealt with at Tis Hazari Courts, Delhi. Infrastructure required for pursuing the cases is separately provided in the Court of Additional Sessions Judge. For all practical purpose even the filing and allocation etc., of cases is done separately in each of the said courts. The Session Judge sits at Tis Hazari. The Patiala House Court and Karkardooma Courts are headed by Additional Session Judge-in-Charge. Shri Ajit Bharihoke is presently functioning as Presiding Judge, MACT, Karkardooma, Delhi. In the aforesaid background, following observations of the Apex Court in Abdul Nazar Madani v. State of Tamil Nadu & Anr. are relevant:

The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 Cr.P.C. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.

6. At this juncture, it may be necessary to take note of Section 326 of the Code, which reads as follows:

"326. Conviction or commitment on evidence partly recorded by one 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 submitted to a superior Magistrate under Section 325."

It is to be noted that the provision is crystal clear and does not make any distinction about any stage of the trial for adjudicating the question whether the successor Judge or Magistrate can deal with the matter. Section 326 of the Code is more or less at par with Section 350 of the Code of Criminal Procedure, 1898 ('old Code' for short) except to the extent that after the amendment Act 43 of 1978 the words "Judge or Magistrate" have come in place of "Magistrate". The general rule is that the only person who can decide the case is the one who had heard the evidence and argument. Section 326 is an extension of that rule. The Section is obviously intended to meet the matter of transfer of Judges or Magistrates from one court to another court and to prevent the necessity of trying from the beginning of a case which may be part-heard at the time of transfer. The object seems to be expedient disposal of the pending cases and to avoid fresh trial in case another judge succeeds and thereby avoiding unnecessary delay in the disposal of the cases.

7. So from 1978 onwards the applicability of the section was extended to all trial courts. The earlier position was that a Judge or Magistrate who heard the evidence alone could decide the case. Later any successor Magistrate was conferred with the option to act on the evidence recorded by his predecessor Magistrate in the same case. Now that option is extended to Judges of all trial courts also.

8. For the application of Section 326 of the Code, there postulates must be concatenated together. First is, a Judge should have recorded the evidence in the case either in part or in whole. Next is, the said Judge should have ceased to exercise jurisdiction in that case, and the third is, another Judge should have succeeded him and such successor Judge must have jurisdiction to try the offences concerned. If the above conditions are completed the successor Judge stands empowered to act on the evidence already recorded in the case.

9. The legislative intention is clear from a reading of the section that the words "succeeded by another Judge" must get a wide amplitude. It is for the said purpose that sub-section (2) is incorporated bringing even cases transferred from one Judge to another, within the scope of the section, The words "such jurisdiction" in sub-section (1) are not intended to narrow down the ambit of the provisions to Judges who could have exercised exactly the same jurisdiction which his predecessor Judge exercised. It is enough that the successor Judge has jurisdiction to try the offences sought to be proved against the accused.

10. The archaic concept was that the very same judicial personage who heard and recorded and evidence must decide the case. That concept was in vogue for a long time. But over the years it was revealed in practice that fossilisation of the said concept, instead of fostering the administration of criminal justice, who doing the reverse. Very occasionally the judicial officer of one court was changed and was replaced by another. As evidence had to be recorded afresh by the new officer under the old system, witnesses who were already examined in the cases at the cost of considerable strain and expenses - not only to them but to the exchequer - were re-summoned and re-examined. The litigation cost thereby inflicted on the parties used to soar up. The process would have to be repeated over again if such next judicial personage also was change.d Eventually it was learnt that the object sought to be achieved by such repetitions, when compared with the enormous cost and trouble, was not of much utility. Hence the Legislature wanted to discontinue the aforesaid ante-diluvian practice and decided to afford option to the successor judicial officer. The Legislature conferred such option only on the Magistrates at the first instance and at the same time empowered them to re-examine the witnesses already examined if they considered such a course necessary for the interests of justice. As the new experiment showed positive results towards fostering the cause of criminal justice the Law Commission recommended that such option should advisedly be extended to Judges of all the trial courts also.

11. The Law Commission in its 41st Report recommended thus:

"It is obviously desirable that in serious cases the whole evidence should be heard by the Judge who finally decides the case. However, having regard to the realities of the situation, it is necessary to make some provision for cases where such transferred do take place, because a mandatory provision considerable inconvenience and hardship. We, therefore, propose to extend the section to Judges of Sessions Courts by referring to 'Judge or Magistrate' instead of 'Magistrate' only."

These aspects were highlighted by the Apex Court in Bhasker @ Prabhakar and Ors. V. State represented by Inspector of Police, Vellore Taulk, Police Station Vellore . It has to be noted that Section 326 itself observes that if the successor is of the 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 for further examination or cross-examination or re-examination, as the case may be.

12. Above being the position, the prayer made for transfer is misconceived and the petition is, therefore, not entertained. The view expressed in Sushil Sharma's case (supra) is not appropriate exposition of the position in law. Same is overruled. View similar to that taken in other cases per force are also overruled.

Dismissed.