Chandana Surya Rao vs State

This revision case is filed against the judgment of the Sessions Judge, Srikakulam in S.T.C. No. 3/87, D/- 9-9-1988 convicting the petitioner herein for the violation of the provisions of Para 21 of the Drugs (Price Control) Order, 1979 r/w S. 7 of the Essential Commodities Act and sentencing him to undergo R.I. for 3 months and to pay fine of Rs. 100/- and in default to suffer S.I. for 15 days.

The case of the prosecution is that on 10-5-1983, P.W. 1, the Drug Inspector sent P.W. 2 for purchasing some medicines from the medical shop of the accused and gave him the prescription and Rs. 20/-. P.W. 2 brought the medicine and handed over the same to P.W. 1 along with an amount of Rs. 2.50 ps. Later, P.Ws. 1 and 2 went to the shop of the accused and asked for a receipt. One Venkateswara Rao, who was sitting in the shop, gave a receipt (Ex. P5). Then a complaint was filed by P.W. 1 alleging that the accused charged excess price for the medicine, which was sold to P.W. 2 and thus violated the provisions of Para 21 of the Drug (Price Control) Order, 1979 r/w S. 7 of the Essential Commodities Act. The complaint was filed before the J.F.C.M., Rajam and the same was numbered as C.C. No. 15/84. Thereafterwards, P.W. 1 was examined-in-chief on 7-2-1984. Subsequently, the file was called for by the Sessions Judge, Srikakulam and the case was numbered as S.T.C. No. 3/87 by the Sessions Judge, Srikakulam. P.W. 1 was called for examination on 11-10-1984. But the case was adjourned to other date, as the files were not received. Again the case was called on 15-2-85. On that date, P.W. 1 was cross-examined and P.W. 2 was also examined on the same date. The Sessions Judge, who examined P.Ws. 1 and 2, was transferred and another Sessions Judge came in his place. The succeeding Sessions Judge pronounced the judgment and imposed the conviction and sentence as stated above. Hence this revision.

Sri A. Surya Rao, the learned Counsel for the petitioner contended that as the case was tried as summary trial case, the procedure laid down under sub-sections (1) and (2) of S. 326, Cr.P.C. will not apply. Sub-section (3) of S. 326, Cr.P.C. is an exception to sub-sections (1) and (2) of S. 326, Cr.P.C. Therefore, the Judge or the Magistrate who tried the S.T.C. must pronounce the judgment; otherwise, it amounts to an irregularity vitiating the entire trial. He next contended that the offence took place on 10-5-1983. Now already 5 years have elapsed. The petitioner is a young and prospective businessman. Therefore, if the case is remanded to the Court below, it will cause great hardship to the petitioner. Even on the merits, the prosecution has not established the case against the petitioner. Therefore, the appeal has to be allowed.

The learned Public Prosecutor submitted that no prejudice is caused to the accused by pronouncing the judgment by the succeeding Sessions Judge and the accused has not raised any objection at the initial stage. Therefore, it cannot be raised now. It is further submitted that the evidence of P.Ws. 1 and 2 sufficiently established the offence against the accused. Therefore, the revision has to be dismissed.

In view of the aforesaid contentions, the question falls for consideration is what is the effect of S. 326(3), Cr.P.C. ? S. 326, Cr.P.C. reads thus :

"326. Conviction or commitment on evidence partly recorded by one Magistrate and partly by another.

(1) Whenever any Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or trial, ceases to exercise jurisdiction therein and is succeeded by another 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 and partly recorded by himself.

Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witness whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.

(2) When a case is transferred under the provisions of this Code from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section (1).

(3) Nothing in this Section applies to summary trials or to cases in which proceedings have been stayed under S. 322 or in which proceedings have been submitted to a superior Magistrate under S. 326."

Thus, sub-sections (1) and (2) of S. 326, Cr.P.C. though empower the succeeding Judge or Magistrate to proceed with the case, sub-section (3) of the said section is an exception to the said sub-sections, as sub-section (3) says that nothing in the section applies to summary trials. Therefore, as per sub-section (3), whenever a summary trial case is dealt with by a Judge or a Magistrate, who takes cognizance of the offence and records evidence, the judgment must be pronounced by the same Judge or the Magistrate only; otherwise the same will vitiate.

Before the new Code (1973) came into force, the provision equivalent to S. 326 of the new Code was S. 350 of the old Code (1898). This S. 350 of the old Code was enacted by the Criminal Law Amendment Act of 1952 and earlier to 1952, there was no such section in the Code.

In Fernandez In re, (1958) 2 Mad LJ 294 : (AIR 1958 Mad 571), a Full Bench of the Madras High Court interpreted the scope of S. 350 of the old Cr.P.C. In that case, the accused was prosecuted for the offence alleged to have been committed on 8-5-1955 which was punishable under S. 161, I.P.C. and S. 5(1)(d) r/w S. 5(2) of the Prevention of Corruption Act. The case was heard and the witnesses were examined by the Special Judge. Later, the Judge was transferred and another Judge was posted in his place. The succeeding Judge took up the case on 27-8-1956. Then the accused filed an application before him under S. 350, Cr.P.C. for re-summoning and re-hearing of the witnesses. The succeeding Judge dismissed that application. Thereafter, he concluded the trial and convicted the accused and sentenced him to undergo S.I, for 6 months. Questioning the same, the accused preferred an appeal to the High Court. The Bench held :

"Having regard to the cardinal rule of procedure in criminal matters and having regard to the pattern of legislation creating Special Courts and investing them with specific powers on procedural matters, in the absence of express provision in any statute, it can be presumed that the Legislature intended to depart from the normal procedure applicable to trial of criminal cases when they are tried by Special Courts. The Criminal Law Amendment Act, 1952 (before its recent amendment by Act II of 1958) did not contain an express provision, as many similar legislations of the time did, similar to one contained in S. 350 of the Code of Criminal Procedure, dispensing with de novo trial in case of change in the personnel of the Special Court trying a case under the Act. Hence the right of an accused to demand a de novo trial in such cases could not be negatived as S. 350 of the Cr.P.C. was not made applicable to the Special Court."

Again the question arose in Ramdas v. V. M. Muddayya 1978 Cri LJ 1043 (Kant), before the Karnataka High Court. The Court held (at p. 1044) :

"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 these cases which fall within the ambit of S. 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 de novo. 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. Therefore, S. 461 would be applicable. It is an irregularity which cannot be cured."

According to the two decisions referred to above, it is a cardinal principle of criminal law that the accused must be heard by the same Judge and the judgment must be pronounced by the same Judge and sub-sections (1) and (2) of S. 326, Cr.P.C. (new) is an exception to that principle.

In Md. Razak v. State of A.P (1978) 2 A LT 485, Mr. Justice Punnayya of this Court considered the scope of S. 350 of old Code and S. 326 of the present Code and held :

"S. 350 (old) or S. 326 (new) has no application to cases tried in a Court of Session. A Sessions Judge cannot act on evidence recorded by his predecessor-in-office. On a change of Judge, Sessions Trial must commence de novo. The judgment passed by the Sessions Judge on evidence partly or wholly recorded by his predecessor is illegal, as he is not competent to pronounce judgment upon evidence recorded by his predecessor. This is partly due to the fact that there is no provision in the old or new Code analogous to S. 350 (old) or S. 326 (new) clothing the Sessions Judge with the power to act on the evidence partly or wholly recorded by his predecessor or to continue the proceedings left by his predecessor and pronounce judgment ......"

Thus, from the above decisions, it is clear that the Judge or the Magistrate, who tries the S.T.C. must give his judgment and if he is transferred without pronouncing judgment, the succeeding. Sessions Judge or the Magistrate has to start the trial afresh and pronounce the judgment. In the present case, admittedly, the Sessions Judge who examined P.Ws. 1 and 2, was transferred and the succeeding Sessions Judge pronounced the judgment. Therefore, the same is vitiated as per S. 461(1) of the Code of Criminal Procedure. As per S. 12-AA(f), the offences under the Essential Commodities Act must be tried by the Special Court. Therefore, they are being tried by the Sessions Judge.

Even otherwise, I do not think it just and proper to remit the case to the Court below for fresh disposal according to law, because, the offence took place on 10-5-1983 and more than 5 years have elapsed and the sentence of imprisonment is for a shorter period and the fine is small amount.

For the foregoing reasons, the conviction and sentence are set aside and the revision is allowed. The fine amount, if paid may be refunded to the petitioner herein.

Revision allowed.