Back
1999(8) Supreme 573
Supreme Court of India
(From Madras High Court)
K.T. Thomas & M.B. Shah, JJ.
Bhaskar @ Prabaskar & Ors. -Appellants
versus
State represented by Inspector of Police, Vellore Taluk Police Station, Vellore -Respondent
Criminal Appeal No. 986 of 1999
(Arising out of SLP (Crl.) No. 2715 of 1999)
Decided on 22-9-1999
Counsel for the Parties :
For the Respondent : S. Sivasubramanian, Sr. Advocate, S. Thananjayay and M.A. Chinnaswamy, Advocates.
Held : For the application of Section 326 of the Code three postulates must be concatenated together. First is, a Judge should have recorded the evidence in the case either in part or in whole. Next is, the said Judge should have ceased to exercise jurisdiction in that case, and the third is, another Judge should have succeeded him and such successor Judge must have jurisdiction to try the offences concerned. If the above conditions are completed the successor Judge stands empowered to act on the evidence already recorded in the case. (Para 13)
The legislative intention is clear from a reading of the section that the words “succeeded by another Judge” must get a wide amplitude. It is for the said purpose that sub-section (2) is incorporated bringing even cases transferred from one Judge to another, within the scope of the Section. The words “such jurisdiction” in the sub-section (1) are not intended, to narrow down the ambit of the provision to Judges who could have exercised exactly the same jurisdiction which his predecessor Judge exercised. It is enough that the successor judge has jurisdiction to try the offences sought to be proved against the accused. (Para 14)
The court cannot afford to be oblivious to the reality that no witness is, on his own volition, desirous of going to the court for remaining there until his turn is called to mount the witness stand and to undergo the agony of facing grueling questions. He does it as he has no other option when summoned by the court. Most of the witnesses can attend the courts only by bearing with all the inconveniences to themselves and at the cost of loss of their valuable time. When any witness had already undergone such agony once in connection with the same case, no effort to save him from undergoing that agony once again for the very same case should be spared, unless such re-summoning is absolutely necessary to meet the ends of justice. On the contrary, no prejudice would be caused to the accused as he can invoke the powers envisaged in the proviso to sub-section (1) of Section 326 of the Code. If the successor Judge is of opinion that further examination of any witness, whose evidence has already been recorded is neccessary in the interest of justice, the Judge would resummon such witness either for further examination or further cross-examination and re-examination. When such a course is permitted by law there can be no possible grievance for the accused that prejudice would be caused to him if the evidence already on record is treated as evidence in the case. (Paras 21 and 22)
Judgment
Thomas, J.-Leave granted.
2. This is typical of procrastination of an already long drawn trial. But the irony is that this is at the instance of the accused who should have normally complained of prolongation of his agony in facing the ordeal of a criminal prosecution. At one level almost fifty witnesses have been examined by the prosecution, but when there was a change of venue of the trial the accused demanded that the whole exercise should of repeated de novo. However, the court to which he applied for such de novo trial spurned down his request and proposed to proceed from where the erstwhile forum arrived at with the trial of the case. The accused then approached the High Court for a direction that the trial should be conducted afresh over again but he did not succeed in the High Court as a Single Judge declined to reverse the progress of the trial thus far attained. This appeal is at the instance of the accused. After hearing learned counsel for the appellant we did not feel the necessity to call upon the respondent State to answer the grounds taken up by the appellant. Hence we dispose of this appeal on merits against the appellant.
3. Appellant was challanned before a Designated Court at Madras (now Chennai) which was constituted under the Terrorist and Disruptive Activities (Prevention) Act 1987 (‘TADA’ for short). The Judge of the Designated Court framed the charge against him for offences under Section 302 read with Section 120B IPC and Section 4 of the Tamil Nadu Public Property (Prevention of Damage and Loss) Act, 1992, besides Sections 3 and 5 of TADA. During the progress of the trial the appellant was released on bail and he continues to be at large on the strength of the said bail order.
4. When the period of TADA expired by efflux of time the Public Prosecutor seems to have withdrawn the offences under TADA from the present prosecution. More than that, the Designated Courts under TADA in the State of Tamil Nadu were closed down after the expiry of the said period, although such courts could still have continued to function by virtue of Section 1(4) of TADA.
5. Be that as it may, in the meanwhile, the present case was made over to the court of Additional Sessions Judge, Vellore (Tamil Nadu) as per an order dated 31.12.1996 for trial of the remaining offences. The said Sessions Court then proposed to proceed with the trial from the stage at which the Designated Court had ceased to function by keeping the evidence already recorded before the Designated Court as duly recorded evidence in the case. Appellant objected to the aforesaid course and demanded a de novo trial. But the learned Sessions Judge over-ruled the objections raised by the appellant as per a reasoned order pronounced by him on 30.7.1998. Appellant persisted with his objection by approaching the High Court under Section 482 of the Code of Criminal Procedure (for short ‘the Code’) which ended up in the impugned order.
6. Learned Single Judge of the High Court found that the trial Court is not obliged to hold a de novo trial in view of Section 326 of the Code. Appellants contended that the trial under TADA is materially different from a trial in the Sessions Court particularly in view of the narrower scope of admissibility of evidence in the Sessions Court. He further contended that there is no provision for de novo trial under TADA and hence a resort to Section 326 of the Code for the purpose of securing continuity in the trial is impermissible.
7. Appellant relied on the decision of this Court in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja1, to buttress up his contention. When a Designated Court took the view that the offences involved in that case were not triable by it it was held that the course then open was to transfer the case for trial to the court having jurisdiction under the Code as provided in Section 18 of the TADA. Learned Single Judge of the High Court did not find any use to countenance, the said contention on
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
