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2006 DIGILAW 1100 (PAT)

Dinesh Singh @ Ramashray Singh v. State Of Bihar

2006-11-22

CHANDRA MOHAN PRASAD

body2006
Judgment Chandra Mohan Prasad, J. 1. This appeal is against the judgment dated 12.3.1992 of the Special Judge, Rohtas at Sasaram passed in G.R. Case No. 1036/50 of 1986 of 1990, (Nokha RS. Case No. 68/86) whereby the appellant has been convicted under Section 7 of the E.C. Act and he has been sentenced to undergo R.I. for one year and a fine of Rs. 500/-, and in default of payment of fine, to undergo S.I. for two months. 2. The prosecution case was that the coal selling shop of the appellant was inspected on 4.5.1986 at 9.00 A.M. by the Supply Inspector, Nokha (P.VV.1) and at the time of inspection the appellant left the shop and fled away from there. On inspection of the shop, 20 quintals and 10 kgs. of coal was found in the shop and neither any register with regard to the stock was found nor the stock had been displayed. 3. Finding the violation of the provisions of the Bihar Trade Articles (Licenses Unification) Order, 1984, the appellant was tried by the Trial Court. As many as six witnesses were examined by the prosecution and on conclusion of trial, the appellant was convicted and sentenced as above. The witnesses examined by the prosecution deposed in support of the case of prosecution. During hearing the learned counsel for the appellant did not argue on the facts or the factual aspects of the evidence of the witnesses but this appeal was argued on the point of law. 4. The learned counsel for the appellant pointed out from the Lower Court Records that during trial, the evidence of P.W. 1 Jyoti Mohan Verma, P.W. 2 Nilmani Upadhya and P.W. 3 Md. Daud Khan was recorded by Sri G.S. Choubey, the then Special Judge. He further pointed out that the evidence of P.W. 4 Jogendra Prasad Singh and P.W. 5 K.K. Ghosh was recorded by Sri S.S. Prasad, the then Special Judge and the evidence of P.W. 6 Moda Narayan Singh was recorded by Sri Kapileshwar Prasad, the then Special Judge, Rohtas, Sasaram who had also passed the impugned judgment in the case. He further pointed out that the evidence of P.W. 4 Jogendra Prasad Singh and P.W. 5 K.K. Ghosh was recorded by Sri S.S. Prasad, the then Special Judge and the evidence of P.W. 6 Moda Narayan Singh was recorded by Sri Kapileshwar Prasad, the then Special Judge, Rohtas, Sasaram who had also passed the impugned judgment in the case. The learned counsel pointed out that under the provisions of Sec.12AA(i)(f) of the Essential Commodities Act (hereinafter referred to be in short as the Act) is triable in a summary way as provided under Sections 262 to 265 of the Code of Criminal Procedure (hereinafter referred to be in short as the Code). 5. Further referring the provisions under Sections 262 to 264 of the Code, the learned counsel points out that the provisions under these sections provide for recording only substance of the evidence of the witnesses and judgment containing a brief statement of the reasons for the finding. The learned counsel continued to submit that in this case the evidence of the witnesses were recorded in summary manner. It is further pointed out that the evidence of the witnesses has not been recorded by the same Judge. The evidence of PWs. 1, 2 and 3 were recorded by a Judge but the evidence of PWs. 4 and 5 was recorded by his successor Judge and the evidence of P.W. 6 was recorded by another Judge who was the successor to the Judge recording the evidence of PWs. 4 and 5. The learned counsel referring the provisions under Sec.326(i)(ii) of the Code points out that the provisions under this Section provide that the evidence recorded by a Judge can be considered by the successor Judge for passing a judgment but further referring the provisions under Sec.326(iii) of the Code, it has been pointed out that the provisions under sub-clauses 1 and 2 of Sec.326 are not applicable in case a summary trial made under the provisions of Sections 262 to 265 of the Code. Thus, the provision under Sec.326(i)(ii) of the Code is not applicable to the instant case and the consideration of the evidence as recorded by a Judge and as made by a successor Judge is not permissible under law. Thus, the provision under Sec.326(i)(ii) of the Code is not applicable to the instant case and the consideration of the evidence as recorded by a Judge and as made by a successor Judge is not permissible under law. The learned counsel submitted that in a summary trial the accused has a right that his case should be heard and decided by the same Magistrate who has recorded the evidence. Since the substance of the evidence is required to be recorded in a summary trial and it is justified that the Judge who has recorded the evidence should hear the case and pass the judgment and law also demands this. Thus considering the provisions of Sections 262 to 265 of the Code as well as Sec.326 of the Code as discussed above, find that the judgment is vitiated due to the reason that the judgment was not passed by the same Judge who recorded the entire evidence in the case. 6. In such view of the matters, the judgment of conviction as passed by the court below cannot be upheld under law. During hearing the learned A.RR raised a question of remanding the case for retrial. But the offence relates to the year 1986 and more than twenty years have passed. In such circumstances, I find no justification in remanding the case for retrial. 7. Thus on hearing, the impugned judgment of conviction passed by the Trial Court is set aside. The appellant is acquitted of the charge and he is also discharged from the liabilities of the bail bond. 8. This appeal is allowed accordingly.