Evidence recorded in a summons trial may be used when converted to a warrant trial, provided procedural integrity is maintained.

ORDER :

1. The petitioner is the sole accused in C.C No. 618 of 2013 on the file of the Judicial First Class Magistrate Court-III, Thrissur arising from Crime No. 446 of 2013 of Mannuthy, Police Station. The offences alleged against the petitioner are under Sections 341, 354, 506(i) of the IPC.

2. The prosecution case is that on 07.03.2013, at about 5.30 p.m, the accused wrongfully restrained the defacto complainant, outraged her modesty by holding her right hand, intimidated to kill her and thereby he alleged to have committed the aforesaid offences.

3. From the order dated 17.11.2022, it is seen that the learned Magistrate, instead of proceeding with the case as a warrant case, proceeded to record the evidence as if in a summons case. At the time of final hearing, after noticing the above mistake, the learned Magistrate decided to rectify the above mistake by framing charge and de novo ordering a trial. Being aggrieved by the above order, the petitioner has preferred this Crl.M.C.

4. According to the learned counsel for the petitioner, though the petitioner informed the learned Magistrate that he was not prejudiced in using the evidence already recorded, ignoring the said de novo submission, the learned Magistrate proceeded to order trial. The same has caused much hardship to the petitioner. Further according to the learned counsel for the petitioner, as the case is of the year 2013, after facing trial for the last nine years, he has to face another trial in case the impugned order is not interfered with. Therefore, he prayed for a direction to the learned Magistrate to quash Annexure C order dated 17.11.2022, so that the case is to be proceeded as a summons case.

5. The petition was opposed by the learned Public Prosecutor. According to the learned Public Prosecutor, unless charge is framed as required under Section 240 Cr.P.C., the trial itself will be vitiated. Therefore, he does not find anything wrong in the proceedure adopted by the learned Magistrate.

6. On the other hand, the leaned counsel for the petitioner, relying upon the decision of this Court in Harishbhai Keshavbhai and others v. State of Kerala, 2021 (1) KHC 335, argued that even if a case tried as a summons case is converted into a warrant case, the evidence recorded during summons trial can be used and acted upon. In paragraph 10 of the above decision, this Court held as follows:

“10. Therefore, it is clear that, learned Magistrate has got jurisdiction to convert the summons case to a warrant cases. But when the summons case is converted to a warrant case, the learned Magistrate need not conduct a de novo trial in all situations. A reading of S.259 of Cr.P.C. itself, it is clear that, the learned Magistrate may proceed to re- hear the case and may recall any witness, who may have been examined, if it decides to convert summons cases into warrant cases. If such a decision is taken after taking all the evidence produced by the prosecution, the learned Magistrate can treat the evidence already recorded by the prosecution as the evidence for prosecution under S.244 of the Cr.P.C. The learned Magistrate can proceed after that, following S.244 to 247 of the Cr.P.C. No de novo trial is necessary.”

7. In the above decision this Court held that in such circumstances, the evidence already recorded during the summons trial can be used even after it is converted into a warrant case. It is true that the above case originated on the basis of a private complaint filed under Section 32 of the Drugs And Cosmetics Act, 1940. Even then, the principles of the above decision can be applied