Fresh recording of evidence by successor Magistrate is not proper in case evidence recorded in full and not in summary manner

 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:-

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 BOMBAY (NAGPUR BENCH)

Criminal Application (Apl) No. 175 of 2012

Decided On: 10.02.2014

Appellants: Ganpatrao
Vs.
Respondent: Rajiv

Hon'ble Judges/Coram:M.L. Tahaliyani, J.

 Citation: 2014(1)Crimes514(NULL)

1. Heard learned Counsel Shri P. Gode for the applicant and Shri V.J. Dharkar for the non-applicant. Admit. Heard finally by consent of the learned Counsel for the parties.

2. 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 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 MANU/SC/1014/2011 : 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.

3. 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 re-hear 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.

4. 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:-

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.

5. As such, in view of the observations made by this Court and the 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. 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.

Print Page