The Food Inspector, rep. by the Public Prosecutor vs Y. Babji and Others

S.B.Sinha, C.J.—In this reference, the following question arises for consideration:

"Whether sub-section (3) of Section 326 Cr.P.C., has to be treated as an exception to sub-sections (1) and (2) of Section 326 independently, even without reference to Section 16A of P.F.A. Act read with Sections 262 - 264 of Cr.P.C., under the said Act in a summary way and consequently whether the same Judge who has recorded evidence has to deliver the judgment also?"

FACTS:

The respondents-accused were prosecuted for commission of an offence u/s 7(i) and (v) and 2(ia)(a) and punishable u/s 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act" for the sake of brevity). The Court did not try the accused persons summarily. It adopted the summons procedure. They were acquitted. The State filed an appeal against the judgment of acquittal.

The respondents-accused raised a plea that as the judgment of acquittal has been passed by a Magistrate, who has not recorded the evidence, the same cannot be sustained in view of sub-section (3) of the Section 326 of the Code of Criminal Procedure (hereinafter referred to as "the Code" for the sake of brevity). In support of the said contention, reliance has been placed on the decision in SARDA AND ANOTHER v. THE STATE OF 1995 (2) PFA 80 A.P.wherein a judgment of another learned single Judge in CHANDANA SURYA RAO v. STATE 1989 Cri.L.J. 2077 was relied upon.

The learned Public Prosecutor, on the other hand, relied upon a judgment of this Court in REVINDER KUMAR v. STATE OF 1997 (1) PFAC 1.The referring Judge was of the opinion that the aforementioned judgments had been rendered only upon taking into account the language incorporated in Section 326 of the Code and without any reference to Section 262 of the Code and 16A of the Act.

RELEVANT PROVISIONS OF LAW:

Section 262 of the Code, which provides the procedure for summary trials, reads thus:

"(1) In trial under this Chapter, the procedure specified in this Code for the trial of summons case shall be followed except as hereinafter mentioned.

(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter."

Section 326 of the Code specifies the procedure for conviction or commitment in cases where evidence was partly recorded by one Judge or 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 predecessor, or partly recorded by his predecessor and partly recorded by himself.

Provided that if the succeeding Judge or Magistrate is of the opinion that further examination of any of the witnesses 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, 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 later, 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 u/s 322 or in which proceedings have been submitted to a superior Magistrate u/s 325."

Section 465 of the Code, reads as under:

"(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation, or revision on account of any error, omission or irregularity in the complaint, summons warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceeding under this Code, or any error, or in any inquiry or other proceeding under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in proceeding."

FINDINGS:

It is not in dispute, in the instant case, that the summary of deposition of the witnesses had not been recorded and the entire depositions of the witnesses were recorded. The witnesses had also been cross-examined. Section 16A of the Act provides for a trial in summary way. In a case where the second proviso appended to Section 16A of the Act applies, summons trial may be taken recourse to.

Even in summary trial, in terms of Section 262 of the Code, the procedure specified in the Code for trial of summons cases would be followed. In the event, the procedure specified under sub-section (1) of Section 262 had been followed, we are of the opinion that Section sub-section (3) of Section 326 will have no application.

The question, which would further arise is that, in any event, a judgment rendered by a Court shall not become invalid only because Section 326 is applicable.

In terms of Section 465, subject to any provisions contained in the Code, no order passed by a Court of a competent jurisdiction shall be reversed in relation to matters specified therein, unless in the opinion of that court the failure of justice has, in fact, occasioned thereby. It is not the case of the respondents that a failure of justice has occasioned in this case. In fact, the judgment of acquittal has been passed in favour of the respondents. In this situation, it is not open to the respondents to raise the aforementioned contention.

The provisions of the Act must be interpreted having regard to the legislative intent. By reason of enactment of Section 326, as it originally stood and subsequent amendment thereto, there cannot be doubt that thereby the recommendations of the Law Commission were sought to be enforced. Section 326 is merely a departure from the principle of criminal jurisprudence that a Magistrate, who heard the entire evidence, must give the judgment. The said provision was intended to avoid delay in disposal of criminal cases. Procedure for trial in summons cases and summary trial are almost the same. Summons trials are not excluded from the purview of Section 326. Sub-section (3) of Section 326 merely excludes summary trial, which would mean that such trials had taken place in terms of Chapter XXI. When a trial is held in summary way, the Magistrate is bound to record only the substance of the witnesses. But, in the instant case, the evidence of all the witnesses has been recorded in full. The trial was, thus, conducted in terms of Chapter XX relating to summons cases and not under Chapter XXI, summary trial.

Sub-section (3) of section 326 excludes the provisions of sub-section (1) having regard to the possible prejudice to the accused and the difficulty of the successor Magistrate in deciding the cases fairly and properly with the evidence on record. It would bear repetition that the question of prejudice and difficulty could arise if the Magistrate had recorded the substance of the evidence in terms of Section 264 of the Code in which event, the advantages of hearing the witnesses might not have been available so far as the successor Magistrates are concerned. However, in a case where the procedure under Chapter XXI had been followed, no prejudice has occurred. This aspect of the matter has been considered by learned single Judge of Kerala High Court in K. JAYACHANDRAN v. NARGEESE & ANR. 1987 (2) Cri. LJ 677 We agree with the said view.

In A. Deivendran Vs. State of T.N., , it has been held:

"Section 465 of the Code is the residuary section intended to cure any error, omission or irregularity committed by a court of competent jurisdiction in course of trial through accident or inadvertence, or even an illegality consisting in the infraction of any provisions of law. The sole object of the section is to secure justice by preventing the invalidation of a trial already held, on the ground of technical breaches of any provisions in the Code causing no prejudice to the accused."

However, in that case, as tender of pardon was made before the Chief Judicial Magistrate and accepted by him, which was only within the jurisdiction of the Court of Sessions, it was held that Section 465 of the Code was not applicable.

In Bhaskar @ Prabaskar and Others Vs. State Represented by Inspector of Police, Vellore Taluk Police Station, Vellore, , tracing the history of Section 326 of Cr.P.C., it was held by the Apex Court:

"The archaic concept was that the very same judicial personage who heard and recorded the evidence must decide the case. That concept was in vogue for a long time. But over the years it was revealed in practice that fossilisation of the said concept, instead of fostering the administration of criminal justice, was doing the reverse. Very occasionally the judicial officer of one court was changed and was replaced by another. As evidence had to be recorded afresh by the new officer under the old system, witnesses who were already examined in the cases at the cost of considerable strain and expenses - not only to them but to the exchequer - were re-summoned and re-examined. The litigation cost thereby inflicted on the parties used to soar up. The process would have to be repeated over again if such next judicial personage also was changed. Eventually it was learnt that the object sought to be achieved by such repetitions, when compared with the enormous cost and trouble, was not of much utility. Hence the legislature wanted to discontinue the aforesaid antediluvian practice and decided to afford option to the successor judicial officer. The legislature conferred such option only on the Magistrates at the first instance and at the same time empowered them to re-examine the witnesses already examined if they considered such a course is necessary for the interest of justice. As the new experiment showed positive results towards fostering the cause of criminal justice the Law Commission recommended that such option should advisedly be extended to Judges of all other trial Courts also."

In view of our foregoing reasons, we are of the opinion that the decisions of this Court in SARDA (1 supra) and CHANDANA SURYA RAO (2 supra) do not lay down the correct law and they are overruled accordingly. The question referred to this Bench is answered accordingly. The matter now be considered on merit by the learned single Judge.