“There could hardly be a case under Section 138 of the
Negotiable Instruments Act where the Magistrate has strictly
adopted procedure applicable to summary cases. It is observed
that in almost all the cases, the evidence is recorded in detail
and in some cases the cross examination goes on for days
together. Therefore, the successor in office is not supposed to go
by the label applied to the case. He is under obligation to
examine the record and proceedings and see that if the evidence
is recorded by adopting the procedure applicable to summons
cases there is no repetition of recording of evidence so that the
valuable time of the Court is saved.”IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Ganpatrao s/o Mahadeorao Kapse,
v
CRIMINAL APPLICATION (APL) NO.175 OF 2012
Rajiv s/o Bhupendranath Sidhra,
CORAM : M.L. TAHALIYANI, J.
DATED : 10 FEBRUARY, 2014.
Citation; 2014 (1) Crimes 514 Bom
The question, which has arisen for determination in the
present application, is as to whether the change of Magistrate by itself will
entail de novo trial in a case which is labelled as summary case. In ordinary
ig
course, if one goes by the provisions of law, the answer will be ‘yes’. But this
issue has been discussed at length in various judgments and particularly in
the judgment of this Court in Criminal Application (APL) No.671 of 2011. It
is pertinent to note that this Court has taken into consideration the
observations of the Hon'ble Supreme Court in the case of Nitinbhai
Saevatilal Shah Vs. Manubhai Manjibhai Panchal reported at AIR 2011
SC 3076. After having gone through the provisions of law and after having
followed the crux of the judgment in Nitinbhai's case, this Court had come to
the conclusion that if a case is labelled as summary case but is tried as a
summons case, there will be no de novo trial automatically on change of the
Presiding Officer. This Court had in detail discussed the manner in which the
evidence in summary case is recorded and also the manner in which the
evidence in summons case is recorded. The Court had also distinguished the
provisions regulating the summary trials and summons trials.
4.
In view of the judgment of this Court in Criminal Application
(APL) No.671 of 2011, in fact there is no scope to give any detail order in the
present application and the said judgment will have to be followed. What is
further noted is that in a recent judgment in a case of Mehsana Nagrik
Sahkari Bank Ltd. Vs. Shreeji Cab Co. and Ors. reported at 2013(4) Crime
351 (SC), the Hon'ble Supreme Court has also taken the same view. The
observations made by the Hon'ble Supreme Court can be found at para Nos.
4, 5, 6 and 7 as under :
“4. The appellant Bank had filed a complaint before the
competent Court under Section 138 of the Negotiable
Instruments Act, 1881 against respondent Nos.1 to 3. As the
respondents wanted one additional party to be added to that
complaint, they filed an application under Section 319 of the
Code of Criminal Procedure before the Additional Chief Judicial
Magistrate, Mehsana. That application having been rejected, a
Criminal revision application was filed before the Principal
Sessions Judge, Mehsana. That Judge confirmed the order
passed by the Trial Court. Thereafter, the respondents filed an
application before the High Court for quashing and setting
aside the orders passed by the criminal courts. The High Court
proceeded on an entirely different premise and disposed of the
application filed by the respondents noting that the evidence in
the matter had come to be recorded by Additional Chief
Judicial Magistrate, Mehsana. The proceeding under Section
138 of the Negotiable Instruments Act is a summary trial
proceeding. Hence, the concerned successor Magistrate had to
record the evidence de novo and any order passed on the basis
of the evidence recorded by his predecessor was not valid. The
High Court relied upon the above judgment in support thereof
and passed an order directing a fresh recording of evidence. It
is against this order of the High Court that this appeal, by
special leave, has been filed.
5. Mr. Huzefa Ahmadi, learned senior counsel appearing
for the appellant Bank pointed out that the law laid down by
this Court in the above authority is that when a proceeding is
conducted as a summary trial, and when one Magistrate has
partly heard the case and is succeeded by another Magistrate,
that second Magistrate has to rehear the whole case afresh and
he cannot start from the stage the first Magistrate left it. There
was no question of the High Court asking the entire matter to
be looked into by another Magistrate de novo, in the present
case because, in fact, the evidence had not been recorded in a
summary manner, but it was recorded in full. Mr. Sanjanwala,
learned counsel appearing for the respondents, on the other
hand, submits that the law laid down in Nitinbhai Saevatilal
Shah & Anr. Vs. Manubhai Manjibhai Panchal & Anr., (supra)
be followed.
6. We have perused the notes of evidence which are produced
on record. They clearly show that the evidence in this case was
recorded in full and not in summary manner. That being so, we
cannot but accept the submission of Mr. Ahmadi.
7. In the facts and circumstances of the case, we allow this
appeal, set aside the order passed by the High Court and direct
the Additional Chief Judicial Magistrate, Mehsana, to proceed
hereafter from the stage where it is pending now. As far as the
application of the respondents for adding some other person to
the complaint is concerned, were are not inclined to accept that.
It is for the complainant to decide as to against which party it
wants to proceed. That application will stand rejected.”
5.
It is thus clear that if the evidence is recorded in detail in a
case, which is registered as summary case, the change of Judicial Officer
during the pendency of case would not by itself attract the provisions of
Section 326(1) of the Criminal Procedure Code. The Court has to
understand the purpose of the said provision and purposive interpretation
has to be given to the provision of Section 326(1) of the Criminal Procedure
Code. The observations made by this Court in Criminal Application (APL)
No.671 of 2011 decided on 2nd May, 2012 can be reproduced here as under :
As such, in view of the observations made by this Court and the
6.
“There could hardly be a case under Section 138 of the
Negotiable Instruments Act where the Magistrate has strictly
adopted procedure applicable to summary cases. It is observed
that in almost all the cases, the evidence is recorded in detail
and in some cases the crossexamination goes on for days
together. Therefore, the successor in office is not supposed to go
by the label applied to the case. He is under obligation to
examine the record and proceedings and see that if the evidence
is recorded by adopting the procedure applicable to summons
cases there is no repetition of recording of evidence so that the
valuable time of the Court is saved.”
Hon'ble Supreme Court in the cases cited Supra, the present application
succeeds. The order passed by the learned Judicial Magistrate First Class,
Nagpur below Exhibit 77 in Summary Criminal Case No.3610/2006 is set
aside. The Magistrate shall continue with the trial on the basis of evidence
already recorded by his predecessor.
7.
The Registrar (Judicial) of this Court is directed to forward one
copy each of the present judgment as well as the judgment passed in
Criminal Application (APL) No.671 of 2011 to all the Session Judges within
the jurisdiction of this Court, who shall circulate copies thereof amongst all
the judicial officers working under them.
JUDGE.
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