JUDGMENT

This Criminal Revision Application is filed against the order of conviction passed by the learned Sessions Judge, Ratnagiri dated 7/8/1999 by which the applicant nos. 1, 2 and 3 were held guilty for the offences punishable under sections 341 and 352 r/w section 34 of the Indian Penal Code. The applicant no. 1 was also convicted for the offence punishable under section 504 of the Indian Penal Code. The applicants were sentenced to undergo R.I for one month and to pay fine of Rs. 100/- each.

2] Respondent no. 2 is the original complainant, who has filed a private complaint against the appellants who are the police officials. Respondent no. 2 was called for the purpose of enquiry to Ratnagiri police station as the complaint was made by his wife and other tenants that respondent no. 2 - landlord has refused permission for electricity connection to the tenants. At the police station the applicants detained him in police lock up and threatened him. The offence was committed by the applicants when they were on duty in the police station. All the defences of the applicants including the requirement of the sanction under section 197 of the Criminal Procedure Code were rejected and they were convicted by the Court of first instance i.e the Judicial Magistrate, F.C, Ratnagiri. Mr. Bhadbhade, the learned counsel for the applicants has submitted that the applicants have preferred this Revision Application mainly on the point of law i.e though the offences for which the applicants were charged i.e sections 341, 352, 504, 506 of the Indian Penal Code were triable summarily and therefore, the matter was treated as Summary Case No. 726/99 and it ought to have been tried in a summary way under Chapter XXI of the Criminal Procedure Code. The learned counsel has further submitted that as per Section 326 of the Criminal Procedure Code if the Magistrate who has recorded the evidence is transferred then the other Magistrate who is a successor can take up the case in continuation and so also is empowered to deliver the judgment in the said matter. However, proviso of Section 326(3) of the Code puts rider for the cases which are tried summarily. No powers are delegated in the Criminal Procedure Code to the successor Magistrate to try a summary trial under Chapter XXI of the Code in continuation if the evidence is partly recorded by his predecessor. The learned counsel has submitted that in the present case one Judicial Magistrate, F.C has recorded the evidence and the other Magistrate has delivered the judgment which is not an irregularity but it is an illegality which vitiates the trial. The order requires to be set aside. In support of his submissions he has relied upon the following rulings.

1] Payare Lal v. State Of Punjab , reported in 1961 DGLS (Soft.) 290

2] Shivaji Sampat Jagtap v. Rajan Hiralal Arora, reported in 2006 (2) Bom.C.R (Cri.) 590.

3] Ramilaben Trikamlal Shah v. Tube and Allied Products, reported in 2007 (Supp.) Bom.C.R 564.

3] Heard the learned A.P.P for the State.

4] Transfers of the Judicial Magistrates or the Civil Judges is a regular and necessary feature of the judicial service. The Judge is supposed to clear the part heard matters pending on his file before handing over the charge. However, some times practically it is not possible due to unexpected transfer orders or due to heavy work load. Considering these possibilities the framers of the Criminal Procedure Code have made the provision and made a provision to solve the problem of the part heard matters. section 326 of the code was codified with the said intention. Section 326 is based on old section 350 of the Code.

Section 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 recored 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 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.

(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.

In summary trial it is expected that the Judge who records the evidence should conclude the matte. This spells out justice oriented common sense. The Judge who records the evidence obviously has a first hand and direct opportunity to appreciate and evaluate the evidence. In such cases there is less chance of drawing misleading inference or conclusion. However, Section 326 enables the successor to take over the matter in continuation and he can go on with the matter from the stage where it was left by his predecessor. Chapter XXI is concise chapter of six sections from section 260 to 265 of the Criminal Procedure Code. Less serious matters where the offences are not punishable with death or life imprisonment for a term exceeding two years or where the value of the property which was stolen does not exceed Rs. 2,000/- and some other offences which are mentioned u/s 260 of the Criminal Procedure Code are to be tried summarily. It is a speedy trial which is to be adopted by dispensing with unnecessary formalities or delay. In the summary trial the Magistrate has to follow the procedure under section 263 of the code which is simplified and shortened procedure of the summons case. The procedure can be described as “Bonsai” trial which has all the characteristics and the stages of the summons trial. Yet it is not as lengthy and detail as the summons case. These special powers are to be invoked and used very cautiously by the Magistrate but it is an effective tool to reduce the Court time and Judge hours in the process of justice.

5] If a particular offence is triable summarily under chapter XXI then the Judge who records the evidence should deliver the judgment. Section 326(3) of the Code has not made applicable to the summary trials. Hence the Judge who is trying the case under section 260; has to complete the case himself or secondly if it is incomplete then the successor has no option but to again record the evidence and complete the trial. On this point I rely upon the ruling (State of Rajasthan v. Rajesh Agrawal) reported in 1996 Cri.L.J 1057. In which it held in paragraph 4 that -

“The law, as it stands today, gives no power to the succeeding Judge to proceed with the trial from the stage at which his predecessor had left it, as in view of sub-section (3) of Section 326 Cr.P.C The provisions of Section 326 Cr.P.C are not applicable to summary trials. The succeeding Judge has, therefore, no option except to order for de novo trial.”

6] The Judge who is trying the case summarily has to bear in mind that the lengthy cross examination or lengthy examination in chief is not a procedure to be followed under Chapter XXI, section 263 of the Criminal Procedure Code. It is essential to understand the object of the scheme of the summary trial. The Magistrate who records the evidence always stand on a better footing while appreciating the evidence, than the Magistrate who does not record the evidence but has only evidence on paper. The said Magistrate is somehow at disadvantageous position as he has to deal with the faceless evidence This provision in fact takes care of the right of the accused to claim better opportunity of the assessment of the evidence. Therefore, considering the bar u/s 326 the Magistrate who tries the case summarily should conclude the trial or the Judge who delivers the judgment should have recorded the evidence. The submissions of learned counsel for the applicant on this point hold substance.

7] On this point I place reliance on Payare Lal v. State Of Punjab , reported in 1961 DGLS (Soft.) 290 (supra). In paragraph 11 of this ruling it is held that -

“We think it ‘relevant to observe that it is a right of an accused person that his case should be decided by a judge who has heard the whole of it and we agree with the view expressed in Fernandez's case) 2) that very clear words would be necessary to take away such an important and well established right. We find no such clear words here.”

8] The other two rulings of our Bombay High Court are in respect of section 138 of the Negotiable Instruments Act where the option of trying the case summarily is given to the Judge.

9] In the case of Shivaji Jagtap (supra) the learned Single Judge has held that -

“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 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 denovo. 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.”

10] Thus, under section 143 of the Negotiable Instruments Act the word used ‘may’ leaves option open for the Magistrate to chose whether the case is to be tried summarily or as a summons case. However, such option is not open for the matter under the Indian Penal Code which are tried summarily under chapter XXI and in those matters all the provisions under Chapter xxi and section 326 of the code are strictly applicable and to be followed.

11] Thus, recording of evidence by one Magistrate and passing order or deliver the judgment by the other is not curable irregularity but is an illegality. On this count alone the order of conviction passed by the trial Court dated 24/2/1994 and also the order confirming the said conviction dated 7/8/1999 passed by the Additional Sessions Judge need to be set aside.

Hence the order.

ORDER

Order passed by the learned Magistrate, Ratnagiri dated 24/2/1994 and the order passed by the learned Additional Sessions Judge, Ratnagiri dated 7/8/1999 are set aside.

The applicant nos. 1, 2 and 3 are acquitted from the offences punishable under sections 341 and 352 r/w section 34 of the Indian Penal Code. The applicant no. 1 is also acquitted from the offence punishable under section 504 of the Indian Penal Code.

They are on bail.

Their Bail bonds stand cancelled.