Som Nath vs State of Haryana

V.S. Aggarwal, J.

Section 326 of the Code of Criminal Procedure reads:

"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 a 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 predusessor, 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 witnesses whose evidence has already been recorded is necessary in the interests of justice, he may resummon any such witness, and after such further examination, crossexamination 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 subsection (1). Para (3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under Section 322 or in which proceedings have been submitted to a superior Magistrate under Section 325."

This section is an exception to the rule that Magistrate who has not recorded evidence in the case is competent to decide whether the accused is guilty or innocent. It has been enacted to meet eventualities that Magistrates are transferred from one place to another. But subsection (3) of Section 326 Cr.P.C. makes the exception to the above said rule and in summary proceedings the successor Judge or the Magistrate has no authority to proceed with the trial or case at the stage his predecessor has left it. It is this particular provision that is being pressed in service.

The petitioner seeks quashing of the order dated 16.11.1994 passed by the learned Chief Judicial Magistrate, Kurukshetra and the proceedings pending before him.

It is alleged that criminal complaint was filed against the petitioner by the Food Inspector in the Court of Chief Judicial Magistrate, Kurukshetra on the allegation that petitioner was found in possession of 4 kilogram of Barfi (Khoya) on 30.3.1988. On analysis it was found to be adulterated with aluminium leaves. After institution of the complaint in the court of Chief Magistrate, he followed the summary procedure as provided under Section 16A of the Prevention of Food Adulteration Act, 1954. Different adjournment were given. The prosecution closed its evidence on 24.8.1994. Even defence witness was examined. After entire proceedings were complete, the case was fixed for 16.11.1994 for final arguments.

After hearing the arguments, the learned Chief Judicial Magistrate, Kurukshetra found that evidence had been recorded by his predecessor and that he cannot take into account the said evidence because summary procedure was being followed. The Court further recorded that from the documents on the record he is of the view that sentence of more than one year is likely to be passed and consequently directed it to be tried as a warrant case.

The petitioner asserts that the said order is not legal because the order does not disclose as to how the Court has reached the conclusion that in this particular case procedure of warrant case should be adopted. He also urges that petitioner is facing the agony of protracted trial for the last seven years and denovo trial would affect his fundamental right of speedy trial.

In the reply filed by the State, the order passed by the learned trial court is justified. It has also been alleged that no prejudice has been caused to the petitioner and that on certain occasion, adjournments were prayed by the petitioner''s counsel.

Section 16A was inserted in the Prevention of Food Adulteration Act, 1954 by Act No. 34 of 1976. It provided that all offences subsection (1) of Section 16 of the Act shall be tried in a summary way and provisions of Sections 262 and 265 (both inclusive) of the Code of Criminal Procedure shall apply to such trial. The second proviso to Section 16A assumes importance and reads:

"Provided further 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 thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code."

Perusal of the same shows that it gives discretion to the Magistrate at any stage of the trial to record a finding that sentence of imprisonment is likely to be more than one year and it is not desirable to try the case summarily. The said discretion has been exercised by the learned Chief Judicial Magistrate. It has the sanction of law. Consequently, there is no illegality in the said order.

Learned counsel for the petitioner highlighted the fact that 7 years had expired. The case was fixed for arguments and this order affects his right to get speedy justice. There is no controversy that every person has a right to seek speedy justice. However, there cannot be a straightjacket formula. Each case has to be examined on its own merits. The case was being tried summarily and the predecessor of the present Chief Judicial Magistrate was transferred. The result was that denovo trial had to be held. At that stage if the learned Chief Judicial Magistrate found necessary to pass the impugned order, it must be held to be justified. Certain exigencies do arise and in the present case permitted by law. Certain delay necessarily would be caused but in the peculiar facts cannot permit the court to quash the proceedings on the ground that there would be delay in the trial.

For these reasons, the petition being without merit must fail and is dismissed.