IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, AT NAGPUR.
CRIMINAL APPLICATION NO. 979 OF 2010
Jaikishan Kanjiwani s/o Premchand Kanjwani
: Versus :
M/s Kumar Matching Centre,
Citation ;2011CR L J134 bombay high court
CORAM: R. M. BORDE, J.
DATE : 21
st
July, 2010.
Oral Judgment
1. Heard the respective Counsel appearing for the parties.
2. The applicant herein is raising exception to the order passed by the Judicial
Magistrate, First Class (Special Court) in Summary Criminal Case No. 8255 of
2007 dated 01/4/2010. The applicant is original complainant, who has tendered
complaint against the respondentoriginal accused for commission of an offence
punishable under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as the Act, 1881). It is not disputed that on receipt of the
complaint, case is registered as summary criminal case and the process was
directed to be issued on 02/8/2007. It further transpires that the complainant
tendered his affidavit in the form of examination in chief on 12/01/2009 and he
was cross examined by the accused on 10/02/2009. Certain documents were
presented by the complainant on record, which were given exhibit Nos. during the
course of evidence. It appears that on several occasion, opportunity was given to
the complainant to lead further evidence, however, it transpires that he failed to
avail of the opportunity. Thereafter, statement of the accused as contemplated
under Section 313 of Criminal Procedure Code came to be recorded on
14/8/2009. So also, the accused has presented on record his written submission
on the same day. It appears from the record of the case that the matter was
posted for arguments on 19/8/2009. It further transpires from the record that an
application came to be tendered to the Court of Sessions by the applicantoriginal
complainant for transfer of the matter from the leaned Magistrate trying the case
to any other Magistrate. The said application was tendered on 27/8/2009 and the
learned Sessions Judge issued order directing transfer of the matter on
administrative ground to the Court of 6
th
J. M. F.C., in view of the order passed on
20/01/2010. The applicant, thereafter, filed pursis dated 12/02/2010 contending
therein that enlisting of the matter for delivery of the judgment in the cause list is
erroneous. It is contended that the complainant wants to lead further evidence in
the matter, but he has not been given sufficient opportunity. It also further
appears from the contentions raised by complainant that the case is registered as
summary criminal case and as such it is not open for the transferee Magistrate to
consider the evidence recorded by the earlier Magistrate and as such, as per
Section 326 of the Code de novo trial has to be proceeded. Reliance was placed on
several judgments of the Supreme Court and the High Court in support of the
submission made in that behalf. The trial Magistrate, after extending opportunity
to both the sides to address on the issue, proceeded to pass order on 01/4/2010
rejecting the contention raised by the applicant. The trial Court has recorded in
the order that the matter has to be tried as summons case and the same was being
tried as summans case by earlier Court and it is not necessary to record evidence
afresh in the mater. The learned Magistrate, therefore, directed to place the
matter for further stage, i.e. for final arguments. The order passed by the
Magistrate during the continuance of the proceedings below Exh. 1 is subjected to
challenge in this application presented under Section 482 of the Code of Criminal
Procedure.
3. The Counsel appearing for the applicant contends that in view of the
provisions of Section 143 of the Act, the offences under ChapterXVII shall have to
be tried by the Judicial Magistrate of First Class in accordance with the provisions
prescribed in the Criminal Procedure Code for conducting summary trial i.e.
Sections 262 to 265 of the Code. The Counsel further contends relying on the
second proviso to Section 143 of the Act that when at the commencement of, or in
the course of, a summary trial under this section, it appears to the Magistrate that
the nature of the case is such that a sentence of imprisonment for a term
exceeding one year may have to be passed or that it is, for any other reason,
undesirable to try the case summarily, the Magistrate shall after hearing the
parties, record an order to that effect and there after recall any witness, who may
have been examined and proceed to hear or rehear the case in the manner
provided by the said Code. It is contended that in the instant case, there is no
order passed by the Magistrate directing to try the case as a Summons Case and as
such, it has to be assumed that the trial in accordance with Section 143 of the Act
is a summary trial and as such the evidence recorded by the earlier Magistrate
prior to transfer of case cannot be taken into account by the transferee Judge.
According to him the proviso to Section 326 of the Code, shall have no
applicability to the present case. The Counsel appearing for the applicant has
invited my attention to the proviso to Section 326 and contends that nothing in
Section 326 shall apply to the summary trial and as such it is not open for the
transferee Magistrate to consider the evidence already recorded. The learned
Counsel has placed reliance on judgment in the matter of Pratibha Pandurang
Salvi & others Vs. State of Maharashtra & another reported in 2010 CRI. L. J. 730
and contends that the provisions of Section 326 of the Code shall have no
applicability to the case and the matter would be covered under Sections 262 to
264 of the Code and as such, the evidence recorded before the earlier Magistrate
cannot be taken into account by the transferee Magistrate.
4. The learned Counsel appearing for the respondent has vehemently opposed
the application and contended that there was ample opportunity given to the
applicant/complainant to lead evidence, however, he did not avail of the same. It
is contended that the evidence in the matter is recorded in the manner prescribed
for recording evidence in a summons case. After examination of complainant was
over, on account of his failure to lead further evidence, statement of the accused
under Section 313 Cr. P. C. has also been recorded and the case is posted for
hearing the arguments of the parties. It is contended that at the stage of hearing
of the arguments, an application was moved for transfer of the case to another
Magistrate and the learned Judge of the Sessions Court accepted the request of
complainant and directed transfer of the matter to another Magistrate on
administrative ground. It is contended that, it is wrong to assume that provisions
of Section 326 of the Code will have no applicability in the facts of the case. It is
further contended that provisions of Section 143(1) has to be read harmoniously
with second proviso to Section 143 of the Act. In a case where the Court comes to
conclusion on recording evidence of the parties in a summary way, the nature of
the case is such that a sentence required to be imposed shall be beyond one year
and in such case, it would be responsibility of the Magistrate to record reasons to
that effect and direct trial of case as summons case and he may direct recall of
witnesses for examination. It is contended that proviso to Section 142 has no
applicability to the facts of the present case. The Counsel appearing for the
respondent has also sought leave to place reliance on the judgment in the matter
of Shivaji Sampat Jagtap Vs. Rajan Hiralal Arora & another reported in 2006 ALL
MR (Cri) 2612 and contended that Section143 of the Act gives an option to the
Magistrate to try the case either in summary manner or by any other mode. The
phraseology used in Section 143 : “....and the provisions of sections 262 to 265
(both inclusive) of the said Code shall, as far as may be, apply to such trials”
indicates that, option is with Magistrate to try case as summary case or conduct
regular trial. It is further the contention of the learned Counsel for the respondent
that in the instant matter, the Magistrate has recorded the evidence of the parties
in a manner prescribed for recording evidence in a summary trial. This is not the
case wherein the substance of examination of the witness is recorded as provided
for conduct of summary trial. It is contended that the trial has proceeded as a
summons trial and as such the provisions of Section 326 of the Code shall have
applicability.
5. Having considered the arguments advanced by the respective Counsel
appearing for the parties and on consideration record, it transpires that the
evidence in the matter has been recorded in the manner as prescribed for the
summary trial. The evidence in the summary trial is required to be recorded as
per the provisions of Section 262 to 265 of the Code. In a trial in respect of
commission of offence which is required to be tried in summary manner, the
record is required to be maintained in accordance with Section 263 of the Code.
The Court is obliged to record substance of evidence of witness while conducting
the trial in a summary manner. After the substance of evidence of the witness is
recorded, it would be obviously difficult for any other succeeding Court taking
over the matter to consider the niceties of the matter and appreciate the evidence
in its proper perspective. The Magistrate who has recorded the substance of
examination has advantage of observing the demeanor of the witness, so also
Magistrate has option to record only gist of examination. He may have his own
impression about the witness and same would be reflected in his verdict. The
advantage which the Magistrate who records the substance of the examination,
cannot be passed over to the transferee Magistrate who takes up the proceedings
at intermediate stage. It is probably a reason for incorporating Subsection (3) of
Section 326 of the Code. The restriction imposed by Section 326(3) applies only
to the trials which are conducted in summary manner as has been already
recorded above. In the instant manner, it is not a substance of the examination of
the witness that is recorded by the earlier Magistrate, but proper statement of the
witness is recorded. The accused has availed of the opportunity of cross
examination to the witness. Thus, the procedure followed in the instant matter is
in respect of regular summary trial. In this view of the matter, restriction
appearing in Subsection (3) of Section 326 of the Code cannot be said to have
applicability.
6. The Counsel appearing for the applicant has contended that there is no order
passed by the Magistrate as contemplated by second proviso to Section 143 of the
Act for trial of the case in any other manner except as provided under Sections
262 to 265 of the Code.
7. The provision of proviso second to Section 143 of the Act has to be read in
consonance with Subsection (1) of Section 143. An option is left with Magistrate
to try the case in the manner provided under Sections 262 to 265 of the Code or
otherwise as a regular trial. The phraseology used in the Section “as far as may
be” denotes that there is option available to the Magistrate. There may be
circumstances wherein after recording the evidence, the Magistrate may gather
impression that the case call for higher punishment and in such circumstance, the
Magistrate can exercise his option thereby directing the trial of a case in any
other manner and while issuing such direction, it is obligatory on the Magistrate
to record the reasons. The second proviso to Section 143 comes in operation
wherein the Magistrate forms his opinion that a case is such which calls for
imposition of sentence of imprisonment for a term exceeding one year or for any
other reason it would be undesirable to try the case summarily. On formation of
such opinion, the Magistrate is expected to direct continuance of the trial in any
other mode and while issuing such orders, it would be obligatory for him to hear
the parties and record reasons.
8. In the instant matter, it cannot be assumed that the Magistrate has formed
his opinion for issuing order as contemplated by second proviso of Section 143 of
the Act. As has been stated above, Section 143(1) of the Act gives option to the
Magistrate to try the case either in a summary manner or otherwise. The second
proviso comes in operation only in the circumstance mentioned therein and it
cannot be said that even at the stage of registering the complaint or at the stage of
recording plea or before recording the evidence of the complainant, it would be
obligatory for him to record reasons as contemplated by second proviso to Section
143 of the Act. Formation of opinion by the Magistrate that the case calls for
imposition of sentence of imprisonment for a term exceeding one year or that any
other reason exists, is a precondition for invoking second proviso which requires
the Magistrate to record reasons and hear the parties.
9. Section 264 of the Code provides for recording of substance of evidence of
the witness while conducting the trial in respect of offence in a summary manner.
In the instant matter, however, a detailed statement of witness has already been
recorded by the Court. The procedure as contemplated by Sections 262 to 264 of
the Code for conduct of trial in a summary manner is not observed by Magistrate
in the instant matter. Therefore, there is no question of recall or reexamination of
the witness, who has already been examined. The obvious reason for insisting
upon recording of reasons as contemplated by second proviso to Section 143 of
the Act is that; when the Magistrate forms an opinion that the trial of a case is not
required to be continued in a summary manner and there exist circumstances
which call for continuance of trial in regular manner i.e. as summary case, it is
obligatory upon him to recall witnesses when evidence is already recorded in
summary manner. In such circumstances, in order to ensure that no prejudice is
caused to either of the parties and with a view to assess desirability of the trial of
a case which was initially being tried in a summary manner, as a regular summons
trial, recording of reasons is insisted upon. In the instant matter as recorded
above, the evidence of witness has already been recorded. Therefore, there arises
no question of recalling the witness for the purpose of reexamination. In the
facts and circumstances of the case, second proviso to Section 143 of the Act is, in
fact, not attracted and it cannot be said that the whole trial is vitiated on account
of failure to record reasons as contemplated by second proviso to Section 143 of
the Act by Magistrate. The objection raised by the applicant in that regard is,
therefore, required to be turned down.
10. The Counsel appearing for the respondent contended that while interpreting
the provisions of Sections 262 to 265 of the Code as well as Section 143 of the
Act, this Court in Shivaji’s case (cited supra) has observed that second proviso to
Section 143(1) of the Act empowers the Court to convert summary trial into
summons case. The expression, “as far as may be” employed in Subsection (1) of
Section 143 of the Act and the second proviso to Subsection 143 confer sufficient
powers on the Court, to try the case in the manner provided by the Code i.e. the
procedure ordinarily followed for trying regular summons case. While considering
the argument in support of applicability of Sections 262 to 264 of the Code to the
trial of the offences under the Negotiable Instruments Act, the learned Single
Judge of this Court in Shivaji’s case (cited Supra) in paragraph 18 of the judgment
has observed as under:
“Under Section 263 in Chapter XXI of the Code, in every case tried
summarily, the Magistrate shall enter, in such form as the State
Government may direct, is expected to “maintain the record” as
mentioned in clause (a) to (j) of that section. Section 264 provides
that in every case tried summarily in which the accused does not
plead guilty, the Magistrate shall record “the substance of the
evidence” and a judgment containing “a brief statement of the
reasons” for the finding. Thus, the indicator to know as to whether
the case under section 138 of the Act has been or is being tried
summarily so as to attract the provisions contained in subsection
(3) of section 326 of the Code is the compliance of sections 263
and 264 of the Code. 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 de novo. 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 subsection
(1) of section 143 of the Act, so as to attract the provisions of
section 326(3) 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. From the
above discussion, the following principle broadly emerges: a case
under section 138 of the Act, which requires to be tried in a
summary way as contemplated under section 143 of the Act, is in
fact, was tried as regular summons case it would not come within
the purview of section 326(3) of the Code. In other words, if the
case in substance was not tried in a summary way, though was
triable summarily, and was tried as regular summons case, it need
not be heard de novo and the succeeding Magistrate can follow the
procedure contemplated under section 326(1) of the Code.
However, where a case is tried in a summary way by following the
procedure contemplated by the provisions of Chapter XXI of the
Code and in particular sections 263 and 264 therein, alone is
intended to be excluded from the purview of section 326(1) of the
Code.”
11. Provision of subsection (3) of section 326 of Cr. P. C. rules out the
applicability of sub sections (1) and (2) of section 326 to summary trial. So far as
the instant case is concerned, as has been recorded above, the trial is not
conducted in the manner as provided under sections 262 to 264 of the Code.
Thus, prohibition contained in subsection (3) of section 326 shall have no
applicability to the facts and circumstances of the case. The trial Magistrate, while
passing the impugned order has recorded that the case has been tried as summons
case and the predecessor Judge has already recorded the evidence of the witness
and the matter was posted for judgment. The learned trial Judge ruled out the
desirability of recording of evidence afresh or reverting the matter back to the
previous stage. It is also evident on perusal of the record of the case that the
evidence of the complainant was recorded on 12/01/2009 and 10/02/2009. The
statement of the accused under Section 313 Cr. P. C. has been recorded on
14/8/2009 and the written statement has also been placed on record by the
accused. The accused has placed on record the ‘evidence close’ pursis on
19/8/2009 which is at Exh. 51. The only stage remains in the matter is that of
hearing of argument and to deliver the judgment. The learned trial Magistrate is
thus, justified in turning down the request made by the complainant for rendering
the matter to the earlier stage of recording of evidence. At this stage of the
proceedings, in exercise of powers conferred upon this Court under Section 482 of
the Code of Criminal Procedure, no interference is called for. The application is,
therefore, rejected.
JUDGE
No comments:
Post a Comment