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Himachal Pradesh High Court · body

2001 DIGILAW 196 (HP)

Chhaju Ram v. State

2001-08-17

R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J. 1. The Petitioner upon having been tried for the offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short the Act) by the learned Sub Divisional Judicial Magistrate, Ghumarwin, District Bilaspur, was convicted for such offence vide judgment dated 8.3.1995 and sentenced to rigorous imprisonment for two years and to pay fine of Rs. 2,000. In default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of six months. 2. In appeal preferred by the Petitioner before the learned Sessions Judge, Bilaspur, the conviction and sentence imposed by the learned Magistrate was set aside and the case was remanded for denovotrial. While remanding the case, the learned Sessions Judge came to the conclusion that there had been contravention of Section 326 of the Code of Criminal Procedureinasmuch as, the learned Magistrate in the case of a summary trial had proceeded to pass the order of conviction and sentence on the basis of the evidence recorded by his predecessor, which under the law he could not have done. The learned Sessions Judge further came to the conclusion that an illegality had been committed by the learned Magistrate and such illegality was not curable. 3. Feeling aggrieved, the Petitioner is before this Court by virtue of the present revision petition. 4. Section 16A of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, all offences punishable Under Section 16(1) of the Act shall be tried in a summary way by a Judicial Magistrate of the First Class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of Sections 262 - 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial. 5. There is no dispute that the Petitioner was being tried for the offences punishable under Section 16(1)(a)(i) of the Act by the learned Magistrate in a summary way. It is also not disputed that the learned Magistrate while passing the order of conviction and sentence on 8.3.1995 had proceeded to pass such conviction and sentence on the basis of the evidence recorded by his predecessor. 6. It is also not disputed that the learned Magistrate while passing the order of conviction and sentence on 8.3.1995 had proceeded to pass such conviction and sentence on the basis of the evidence recorded by his predecessor. 6. Section 326(1) of the Code of Criminal Procedure provides that 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 Anr. 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 or partly recorded by himself. 7. In view of the said provisionin the case of a trial of a criminal case, the succeeding Judge or a Magistrate can act on the evidence wholly or partly recorded by his predecessor. However, Sub-section (3) of Section 326 provides that the provision contained in Sub-section (1) of Section 326 shall not apply to summary trials. Thereforein a summary trial a Judge or a Magistrate cannot act on the basis of the evidence either wholly or partly recorded by him. He has to proceed with the case denovo. 8. Dealing with the scope of Section 326 of the Code of Criminal Procedure, the Karnataka High Court in Ramrfas Kelu Naik v. V.M. Muddayya and Anr. 1978 Cri.LJ 1043, has held that the cardinal principle of law in criminal trial is that it is a right of an accused that his case should be decided by a Judge who has heard the whole of it. Section 326 is an exception to the aforementioned cardinal principle of criminal law. Therefore, except " in regard to those cases which fall within the ambit of Section 326, a succeeding Judge or a Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He has got to try the case denovo. If that cardinal principle is violated by a particular Judge or a Magistrate, he would be doing something not being empowered by law in that behalf. It is an irregularity which cannot be cured. 9. He has got to try the case denovo. If that cardinal principle is violated by a particular Judge or a Magistrate, he would be doing something not being empowered by law in that behalf. It is an irregularity which cannot be cured. 9. It was further held that where on a complaint under Section 200, a Magistrate decides to try a case summarily and records evidence, his successor cannot proceed with the case from that stage onwards and that even the consent by the counsel on both sides cannot confer such jurisdiction on the succeeding Magistrate. 10. In Chandana Surya Rao v. State 1989 Cri.L.J. 2077, the High Court of Andhra Pradesh also had the occasion of dealing with the scope of Section 326, Code of Criminal Procedure. The case before the Court arose out of the trial for an offence under the Essential Commodities Act which offence under the law was to be tried in a summary way. The conviction and sentence was imposed upon the accused therein by the succeeding Judge/Magis- trate. It was held that under Section 326(3), Code of Criminal Procedure whenever a summary trial case is dealt with by a Judge or Magistrate, who takes cognizance of the offence and records evidence, the judgment must be pronounced by the same Judge or Magistrate only, otherwise, the same will vitiate. The Judge or the Magistrate who tries the summary trial case must give his judgment and if he is transferred without pronouncing the judgment, the succeeding Judge or the Magistrate has to start the trial afresh and pronounce the judgment. It was further held that where the judgment is pronounced by the succeeding Judge/Magistrate on the basis of the evidence recorded by his predecessor in office, the same would be vitiated as per Section 461(1), Code of Criminal Procedure. 11. Similar view was taken by the High Court of Rajasthan in State of Rajasthan v. Rajesh Agraival Ors. etc. 1996 Cri. L.J. 1057. 12. The learned Counsel for the Petitioner while not disputing the proposition of law detailed above, has contended that the case ought not to have been remanded and denovo trial ought not to have been ordered keeping in view the fact that the Petitioner has already undergone the ordeal of a protracted trial and the circumstances itself call for a lenient view in the matter. In support of his contention, the learned Counsel has placed reliance upon the ratio laid down by the Punjab and Haryana High Court in Brij Mohan v. State of Haryana 1994 (1) FAC 90, and that of Calcutta High Court in Suresh Prasad Shazv v. State of West Bengal and Anr. 1994 (1) FAC 103. 13. In the present case, the Petitioner who was accused No. 2 before the learned trial Court had put in appearance for the first time on 21.9.1991. The trial ended in the conviction and sentence of the Petitioner on 8.3.1995. The appeal preferred by the Petitioner before the learned Sessions Judge was decided on 16.9.2000. According to the learned Counsel for the Petitioner ten years have since elapsed and during this period the Petitioner has been suffering and facing the ordeal of the criminal prosecution. 14. In the case of Brij Mohan v. State of Haryana (supra), the accused therein was convicted and sentenced by the trial Court and the conviction and sentence in appeal was affirmed by the learned Sessions Judge. In further revision before the High Court, it was held that since the accused therein had undergone ordeal of a protracted trial, that circumstance itself calls for a lenient view. Accordingly, the accused therein was not sent to jail for undergoing the remaining period of sentence and the period already undergone by him was treated as the sufficient sentence. In Suresh Prasad Shaw v. State of West Bengal (supra), the prosecution of the accused therein for the offence under the Act was cancelled simply on the ground that seven years had passed in the trial without making much head-way. The above ratio relied upon by the learned Counsel for the Petitioner on the facts of the case are not applicable. Therefore, I am of the opinion that the learned Sessions Judge has rightly remanded the case and ordered the denovo trial of the Petitioner for the offence under Section 16 of the Act. 15. The impugned order does not call for any interference. Resultantly, the present petition is dismissed. 16. The parties through their counsel are directed to appear before the learned trial Court on 24.9.2001. The record be returned forthwith so as to reach well before the date fixed.