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2016 DIGILAW 309 (RAJ)

Harjeet Singh v. State of Rajasthan

2016-02-23

SANDEEP MEHTA

body2016
ORDER By way of this revision, the accused petitioner Harjeet Singh has approached this Court being aggrieved of the order dated 1.9.2014 passed by the learned Additional Sessions Judge, Anoopgarh, District Sriganganagar in Cr.Appeal No.53/2010 rejecting the application preferred on his behalf under Section 326(3) Cr.P.C. Facts in brief are that the petitioner was tried by the learned Judicial Magistrate First Class, Anoopgarh in Cr.Case No.107/07 for the offence under Section 138 of the N.I.Act and the trial Court, by judgment dated 6.8.2010, convicted and sentenced the petitioner for the said offence. The petitioner challenged the judgment of conviction by preferring an appeal in the court of the learned Additional Sessions Judge, Anoopgarh. During pendency of the appeal, an application was moved on behalf of the petitioner on 26.6.2013 under Section 326(3) Cr.P.C. asserting that as the learned trial Judge did not adopt the procedure of summary trial and since evidence was recorded in the case by one Presiding Officer and the judgment was delivered by another, the proceedings conducted by the trial Court were vitiated and should be quashed in their entirety as the fundamental defect in the trial was incurable. The appellate court rejected the application by order dated 1.9.2014 upon which the petitioner accused has approached this Court by way of the instant revision. Shri GR Goyal, learned counsel for the petitioner relied upon a judgment rendered by the Hon’ble Supreme Court in the case of Nitinbhai Saevatilal Shah and Anr. Vs. Manubhai Manjibhai Panchal and Anr. reported in AIR 2011 SC 3076 and contended that the trial Court did not proceed with the case in a summary manner and therefore, the entire trial is vitiated. He urged that evidence in the case was partly recorded by one Presiding Officer and thereafter, the said Presiding Officer was transferred. The remaining evidence was recorded by another Presiding Officer, who passed the judgment against the accused. Thus, as per him, the mandatory requirement of Section 326 Cr.P.C. was not complied with totally vitiating the trial. As per him, the defect in the procedure adopted by the trial Court is incurable and thus, the entire proceedings undertaken by the trial Court are fit to be quashed. Thus, as per him, the mandatory requirement of Section 326 Cr.P.C. was not complied with totally vitiating the trial. As per him, the defect in the procedure adopted by the trial Court is incurable and thus, the entire proceedings undertaken by the trial Court are fit to be quashed. In the alternative, he submitted that if the Court feels that the defect is curable then, the trial Court’s judgment should be quashed and the matter should be remanded to the trial Court for proceeding afresh after complying with the provisions of Chapter XXI of Cr.P.C. and as a consequence, the mandate of Section 326 Cr.P.C. in its letter and spirit. Shri Goyal urged that the judgment rendered in Nitinbhai’s case (supra) was further considered by the Hon'ble Supreme Court in the case of Indian Bank Association & Ors. Vs. Union of India & Ors. reported in AIR 2013 SC 2528, wherein the Hon'ble Supreme Court neither differed with nor disapproved the ratio of the judgment in Nitinbhai’s case and therefore, there is no escape from the conclusion that the entire trial is vitiated. Per contra, Shri NL Joshi, learned counsel for the respondent No.2 accused supported the order passed by the appellate court and urged that adopting procedure of summary trial is not mandatory in each and every complaint under Section 138 of the N.I.Act. As per him, the trial Court, after considering the complexities of issues involved in the matter has a discretion to decide whether to proceed with the complaint in a summary manner or to try it as a summons case. As per him, as in the case at hand, the trial Court did not pass any explicit order for proceeding in a summary manner and thus, it has to be presumed that the case was tried as a summons case. He contended that while recording evidence, examination in chief of the witnesses was recorded, the accused was afforded extensive opportunity of cross-examining the witnesses. The accused was also examined under Section 313 Cr.P.C. During entire trial, no objection was taken by the accused that the matter should be tried in a summary way. As per him, no prejudice can be said to have been caused to the accused by the action of the trial Court in not adopting summary proceedings in the case. The accused was also examined under Section 313 Cr.P.C. During entire trial, no objection was taken by the accused that the matter should be tried in a summary way. As per him, no prejudice can be said to have been caused to the accused by the action of the trial Court in not adopting summary proceedings in the case. He, therefore, prayed that the belated attempt of the accused to stifle the trial Court’s judgment by taking recourse to the judgment rendered by the Hon'ble Supreme Court in Nitinbhai’s case is malafide. He relied upon a single bench decision of this Court in the case of Silochana Vs. State of Rajasthan reported in 2013(3) Cr.L.R. (Raj.) 1582 in support of his contention and urged that the revision is meritless and should be dismissed. I have heard the arguments advanced by the learned counsel for the parties and have gone through the material available on record. Needless to say that in case of Nitinbhai (supra), the Hon'ble Supreme Court referred to the provisions of Chapter XXI of the Cr.P.C. and observed that whenever the procedure of summary trial is adopted, the learned Magistrate should adhere to the same in its letter and spirit. The Hon'ble Supreme Court in the said case, did not lay down a straitjacket formula that the procedure of summary trial has to be mandatorily adopted by the court while trying each and every case under the Negotiable Instruments Act. Even as per Section 143 of the N.I.Act which was introduced by way of an Amendment in the year 2002, it is not mandatory for the trial Court to adopt the procedure of summary trial. All that the Amended provision postulates is that the provisions of Section 202 to 265 and the procedure of summary trial shall, as far as may be possible, adopted by the learned Magistrate. Under Section 139 of the N.I.Act, the complainant has available to him the aid of a presumption against the accused. Thus, if the procedure of summary trial is strictly adhered to by the trial Court irrespective of the complexities involved in the case, then, it is the accused, who is likely to be prejudiced because only substance of evidence would be recorded and the right of extensive cross-examination cannot be availed. Thus, if the procedure of summary trial is strictly adhered to by the trial Court irrespective of the complexities involved in the case, then, it is the accused, who is likely to be prejudiced because only substance of evidence would be recorded and the right of extensive cross-examination cannot be availed. The trial Court, in the case at hand, after examining the entire gamut of facts, did not think it proper to proceed with the case in a summary manner. No request of this kind was made on behalf of the accused. The accused gleefully accepted the opportunity provided to him by the trial Court’s discretion in trying the case as a summons and extensive cross-examination was conducted on his behalf from the witnesses. This Court in the case of Silochana (supra) held that once, the trial is conducted as a summons case, the procedure envisaged under Section 326 Cr.P.C. would not apply. In the case of Indian Bank Association (supra), the Hon'ble Supreme Court further explained the judgment in the case of Nitin bhai and issued mandatory directions for trials of cases under the N.I.Act, which are reproduced hereinbelow for sake of ready reference:- “(1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons. (2) MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken. (3) Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest. If the summons is received back un-served, immediate follow up action be taken. (3) Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest. (4) Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251, Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re-calling a witness for cross-examination. (5) The Court concerned must ensure that exami-nation-in-chief, cross-examination and reexamination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complainant and accused must be available for cross-examination as and when there is direction to this effect by the Court.” All the criminal courts in the country were directed to follow the above directions in their letter and spirit so as to ensure speedy and expeditious disposal of complaints under Section 138 of the N.I.Act. In para 4 of the directions, the Hon'ble Supreme Court postulated that the accused would be asked to take notice under Section 251 of Cr.P.C. This provision falls in Chapter XX of Cr.P.C. which lays down the procedure for trials of summons cases. In para 5 of the directions, the Hon'ble Supreme Court postulated that the court concerned must ensure that examination in chief, cross-examination and reexamination of the complainant must be conducted within three months of assigning the case. The procedure of examination in chief, cross-examination and reexamination is not applicable in summary trials. In a summary trial, the court is only required to record the substance of evidence. If the procedure of summary trial is strictly adhered to, the accused would not get the opportunity of extensive cross-examination from the witnesses and in all probabilities, looking to the presumption operating under the Act, it is the accused, who would suffer rather than the complainant. If the procedure of summary trial is strictly adhered to, the accused would not get the opportunity of extensive cross-examination from the witnesses and in all probabilities, looking to the presumption operating under the Act, it is the accused, who would suffer rather than the complainant. In view of the above discussion and after going through the record and since the trial Court adopted the procedure of a summons case while trying the matter; and since no request was made by the accused for trying the case in a summary manner; and as no prejudice is shown to have been caused to the accused thereby, the plea raised by the accused before the appellate court that the proceedings of the trial are vitiated on account of non-adherence to the requirement of Section 326(3) Cr.P.C., is totally unfounded and was simply aimed at delaying the disposal of the appeal and nothing beyond that. The revision thus being devoid of any merit is hereby dismissed. Record be sent back forthwith. The appellate court shall hear and decide the appeal within two months from the date of receipt of the record.