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2008 DIGILAW 14 (PAT)

Dhurub Nath Chaubey v. State Of Bihar

2008-01-07

SHYAM KISHORE SHARMA

body2008
Judgment Shyam Kishore Sharma, J. 1. The sole appellant has preferred this appeal against the judgment and order of conviction dated 31.3.1993 passed by Sri P.K. Sinha, Special Judge, under the Essential Commodities Act, Muzaffarpur in connection with Sariya P.S. Case No. 158 of 1988 whereby the appellant was found guilty under Section 7 of the Essential Commodities Act and he was sentenced to undergo R.I. for six months. A prosecution under Section 7 of the Essential Commodities Act was launched against the appellant on the inspection of the Block Supply Officer along with other officials of Supply Department in premises of the appellant on 1.10.1988. The matter was reported and prosecution report was lodged by the Block Supply Officer alleging therein that the at the time of inspection shop was found not opened on query the younger brother of the appellant disclosed the appellant had gone out and thereafter he opened the shop for inspection. No stock was made available. The appellants brother expressed ignorance about the stock register or the papers, hence the prosecution was launched. The matter was investigated and after investigation the charge sheet was submitted and trial proceeded. 2. During trial the prosecution examined six witnesses in support of prosecution case. Two defence witnesses were also examined. The court below vide its judgment hold that no violation of display order 1997 would be proved because the prosecution has failed to produce the order of competent authority which is required under Clause 6 of the Display order. The Special Judge also found no evidence regarding charging of enhanced price from the customers. Though the appellant denied all the allegations and all the facts but the question of law has been raised here and it has been submitted that the prosecution of the appellant is in violation of Sec. 326(3) of the Cr.P.C. Sec. 326(3) of the Cr.P.C. is reproduced below: Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under Sec. 322 or in which proceedings have been submitted to a superior Magistrate under Sec. 325. 3. It has been argued that it is well settled law by a number of decisions of this Court that in trial evidence cannot be recorded or read in violation of procedural law. 3. It has been argued that it is well settled law by a number of decisions of this Court that in trial evidence cannot be recorded or read in violation of procedural law. Allegation against the appellant was of summary nature for which he should have been tried in the summary manner and trial should have been concluded by the officer who had recorded the evidence. The person who has recorded the statement did not pass the judgment, therefore there is complete violation of Sec. 326(3) Cr.P.C. In view of the judgment reported in PLJR 1997 (1) 1991 and also 1990 PLJR 477 in the case of Nathmal Kabra and Anr. V/s. State of Bihar the trial is vitiates. The trial of the appellant was vitiated so it was null and void. It has been pointed out that in this case deposition of PW 1 and 2 were recorded by Sri S.B. Singh, the deposition of PW 3 onwards were recorded by Sri R.C. Srivastava but the judgment was passed by Sri P.K. Sinha. The judgment can only be passed by an officer who had the opportunity to record the evidence. Because in this case neither the sentence required to be passed was found to be inadequate by the Special Judge nor the case was of nature which could be disposed of by the Special Judge. Provisions of Sec. 326(3) of the Cr.P.C. can be deferred on two counts i.e. mentioned in Sec. 323 and 325 Cr.P.C. In the present case none of the conditions laid down under Sec. 323 and 325 of the Cr.P.C. were available before the Special Judge so the Special Judge was not competent to pass the order as it has been held in number of judgment that the same Special Judge can pass the order who had the opportunity to record the statement for which reasons have been mentioned in the judgment reported earlier. 4. This legal submission has not been challenged by the learned APP who has submitted that in view of the law settled by the court earlier the Special Judge was not competent to pass the order of conviction. Hence according to him also the judgment is neither legal nor correct. 5. 4. This legal submission has not been challenged by the learned APP who has submitted that in view of the law settled by the court earlier the Special Judge was not competent to pass the order of conviction. Hence according to him also the judgment is neither legal nor correct. 5. It will be futile to discuss all the question of law which have been discussed in the judgment referred above because the law relating to interpretation of Sec. 326(3) of the Cr.P.C. have been discussed fully in the judgment referred above and in view of the decisions of law I can held the impugned judgment passed by the court below is illegal and is fit to be set aside. 6. As the trial is vitiated on account of procedure law the de-novo trial cannot be suggested because the offence was committed about two decades back. This question was also considered in the judgments reported in 1997 (1) PLJR 1991 when De-Novo trial was not preferred because the occurrence was 11 years back, here also the proposition is the same rather grave so the de-novo trial on account of failure to procedural law cannot be allowed. 7. In the result, this appeal is allowed and the impugned judgment is set aside. The appellant is discharged from the liabilities of bail bonds.