The main legal point established in the judgment is the distinction between summary trials and regular trials, and the applicability of Section 326(3) of the Code of Criminal Procedure.

1. Rule. Rule made returnable forthwith and heard finally by consent of the parties.

2. The Petitioner is aggrieved by the order dated 26.11.2012 passed by the learned Judicial Magistrate First Class, Osmanabad by which the learned Magistrate has directed a denovo trial in Summary Criminal Case No. 597/2008.

3. The Petitioner submits that by lodging of Crime No. 117/2008 under Sections 143, 294, 341, 504 and 506 of the Indian Penal Code r/w Section 135 of the Bombay Police Act, the Petitioner is being tried in SCC No. 597/2008. Though the case was to be tried as a summary case, the learned Magistrate Shri S.K. Karande had recorded the examination-in-chief of the first witness on behalf of the prosecution and the said witness was cross-examined at length by the Petitioner. Similarly, the prosecution had produced three witnesses, who were examined followed by cross-examination by the Petitioner. The recording of oral evidence was concluded on 15.11.2011.

4. Shri Deshmukh, the learned Advocate for the Petitioner, submits that after recording of oral evidence in the form as is noted above, the learned Judge was transferred and a new Presiding Officer took charge. Consequentially, the application Exhibit-54 was moved by the prosecution seeking a denovo trial as the case is of a summary character. The Petitioner submitted his reply at Exhibit-55 and opposed the application on the ground that the same is unsustainable and deserves to be rejected. It was also pointed out that the matter was posted for advancing final arguments. The Petitioner/accused will have to face a de novo trial and suffer rigours of litigation without any justifiable reason.

5. Shri Deshmukh submits that by the impugned order dated 26.11.2012, the application Exhibit-54 filed by the prosecution had been allowed primarily on the ground that the predecessor learned Judge has recorded the plea and evidence and the accused is to be tried summarily. Section 326(3) of the Code of Criminal Procedure would become applicable and hence, the case would have to be retried. The learned Magistrate, therefore, ordered issuance of summons to the witnesses who were already examined, for denovo trial.

6. Shri Deshmukh places reliance on the reported judgment of this Court in the matter of Shivaji Sampat Jagtap vs. Rajan Hiralal Arora, 2007 Cri.L.J. 122, and submits that the ratio laid down in this judgment is practically tailormade for this case and the same is squarely applicable. He specifically relies upon paragraphs 3 to 6, 10 to 12, 14 to 16 and 20 of the said judgment.

7. The learned APP has supported the impugned order contending that once the case is being tried as summary case, Section 326(3) of the Code of Criminal Procedure would have it’s full applicability and hence, the impugned order passed by the learned Judge is sustainable.

8. I have considered the submissions of the learned Advocates.

9. Section 326 of the Code of Criminal Procedure reads as under:

“326. Conviction or commitment on evidence 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 opinion that further examination of any of the witness whose evidence has already been recorded is necessary in the interests of justice, he may resummon any such witness, and after such further examination, cross-examination and reexamination, 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 a