The State of Assam vs Shri Umesh Ch. Das and Another

K. Lahiri, J.—In this Criminal Revision, the short point which falls for determination is whether "a successor Judge" may act on evidence wholly recorded by his predecessor or party recorded by his predecessor and partly recorded by himself and conclude the trial on the basis of such evidence.

In the instant, case the evidence had been partly recorded by the Assistant Sessions Judge at Silchar and on his transfer the present recumbent has assumed the office. Learned Judge held that he has no jurisdiction to act on the evidence recorded by his predecessor on the basis of various decisions including Ajit Deka v. State of Assam 1973 ALR 31, which were based on old provision u/s 350 of the Code of Criminal Procedure and/or Section 326 Criminal Procedure Code, 1973 price to its amendment. The complainant being aggrieved moved learned Additional Sessions Judge who by his order dated 13.1.84 held that the trial Court had no option but to proceed "de novo" under ''''the Code" and dismissed the revision petition.

As such the crucial question is whether a successor Judge of Sessions Court can act on the evidence wholly recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself? The provisions of Section 326 Code of Criminal Procedure 1973 as amended by the Criminal Procedure (Amendment) Act, 1978, are extracted herein below:

Conviction or commitment on evidence partly recorded by one Magistrate and partly by another - Whenever any Judge or Magistrate, after having beard and recorded 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 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, cross-examination and re-examination, if any, as be 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 u/s 322 or in which proceedings have been submitted to a superior Magistrate u/s 325.

Portions in italics have been substituted by the Code of Criminal Procedure (Amendment) Act, 1978 Section 27.

The Section corresponds to Section 350 of the Criminal Procedure Code, 1898, since repealed. The legislative changes brought in Section 326 of "the Code" was made on the basis of recommendation of the Law Commission in its 41st Report suggesting that Section 326 relating to "part heard case'''' is extended to judges of sessions Courts as well. Earlier, only Magistrates could, but Judges could not act on the evidence recorded by their predecessors in office, Parliament realised the panga and agonies of accused before Court of Sessions. It also realised that there was needless delay in Sessions trials which caused hardships to both the parties and particularly the accused and accordingly amended the provisions of Section 326(1) and (2) by the Code of Criminal Procedure (Amendment) Act, 1978. The expressions "Judge or Magistrate" were substituted wherever the term ''''Magistrate" appeared in Sub-section (1) and the collocation of the words "from one Judge to another was inserted in Sub-section (2) of Section 326.

As such, the provisions of Section 326 were applied to cases tried by Judges of Sessions Court. The legislative object is to prevent delay, save time and expenditure and thereby wipe out the necessity of fresh enquiry and trials whenever the judges are transferred or retired after partly recording the evidence. Harassment to poor litigants have been removed. Further, it has helped administration of justice to deliver quick justice.

On bare perusal of Section 326 it is seen that a successor Judge can act on the evidence wholly recorded by his predecessor or partly recorded by his predecessor and partly recorded by him. Section 326 is an exception to "the general rule" that only a person who has heard the evidence in a case is competent to decide whether the accused is innocent or guilty. Section 316 has been designed to cater the need of the litigants and it has ensured speedy trial in tune with the commands contained in Article 21 of the Constitution. The agonies and miseries of the litigants before Court of Sessions were noted and Judges have been empowered to act on evidence recorded by their predecessor, whether wholly or partly. However, that is a rider that the succeeding judge may recall any witness whose evidence has already been recorded, for his examination, cross-examination or re-examination in the interests of justice.

In the instant case the present incumbent has ''succeeded'' the previous Judge. Accordingly, learned Judge can exercise jurisdiction over the case and may act on the evidence recorded by his predecessor wholly or partly recorded by his predecessors and partly to be recorded by him. In the earlier case learned Single Judge considered, on the facts and the circumstances of the case obtainable at the relevant time, that it was desirable to hear the case ''de novo'' by the succeeding Judge. However, that stage is over. All witnesses have been examined except the Investigating Officers. Learned Judge may now act on evidence recorded by his predecessor wholly or partly and may record fresh evidence and act on them. He may summon any witness who has already been examined by his predecessor to uphold the interest of justice.

For the foregoings in exercise of power under Article 227 of the Constitution of India, I direct the trial Judge, who has succeeded the previous Judge/Judges, that he may act on the evidence wholly recorded by his predecessors or partly recorded by his predecessors and partly to be recorded by him.

However, learned Judge shall be at liberty to further examine any witness whose evidence has already been recorded if he considers it necessary to do so in the interests of justice. We direct learned Judge to conclude the trial of the case by the end of October, 1984, as the case is pending since 1969.

In the result the petition is allowed and the impugned orders are quashed.

Send down the records to the trial Court.