The successor of a Magistrate is not bound to pronounce the draft judgment kept under sealed cover by his predecessor.

JUDGMENT

A.K. Mishra, J. - Heard learned counsel for the petitioner and the learned counsel for opposite party.

2. The prayer has been made to quash the order dated 03.04.2017 passed by the learned J.M.F.C., Bhubaneswar in 1CC Case No.2698 of 2010, the said order runs hereunder:-

"This order arises out of petitions filed on 29.03.2017 under section 243 section 311 of Cr.P.C., 1973 R/w Section 165 of Evidence Act and application under section 70(2) of Cr.P.C., 1973 for cancellation of NBW issued against the accused person, filed by Ld. Advocate Govind Jee along with fresh V. nama on behalf of the accused Himansu Mahapatra. Heard on the petitions.

I perused the case record and found that judgment could not be pronounced and same has been kept in the sealed cover after issuance of NBW against the accused Himansu Mahapatra as the accused was absent on the date fixed for pronouncement of judgment i.e. on 20.08.2015. Till the date of this order, neither the N.B.W. was executed nor the accused has surrendered himself before this court.

Taking note of the above fact and circumstances, the court is of the view that for the interest of justice, allowing both the petitions will linger the pronouncement of judgment and also for disposed of the case record. So, I am not feeling proper to allow both the petitions, filed by Ld. Advocate for the accused at this stage. Hence, both the petitions stand rejected. Issue reminder to the concerned P.S. to execute the above NBW as early as possible which was issued against the accused on 20.08.2015 and pending till the date of this order. "

3. Learned counsel for the petitioner submits that though accused has already been released on bail by the order of this Court no progress has been made till date in the proceeding due to stay order.

4. Learned counsel for the petitioner also submitted that by not allowing to adduce the evidence for which petition under CRLMC No.1372 of 2017 section 311 Cr.P.C., 1973 was filed, prejudice has been caused to the right of the accused. It is further submitted that the lower court cannot pronounce the judgment kept in the sealed cover by his predecessor.

5. Learned counsel for opposite party submitted that the petition under section 311 Cr.P.C., 1973 was not filed earlier to the fixing of date for delivery of judgment and only when N.B.W. was issued to procure the attendance of accused, the petition under section 311 Cr.P.C., 1973 was filed to cause delay in trial.

6. The impugned order does not indicate that the sealed cover judgment would be pronounced by the successor Presiding Officer. The accused-petitioner has already been released on bail and the trial has been held up due to stay order of this court. As such the prayer to quash the impugned order to that extent is not warranted. The trial is for the offence under section 138 of the Negotiable Instrument Act. The successor of a Magistrate under section 326 Cr.P.C., 1973 is not bound to pronounce the draft judgment kept under sealed cover by his predecessor.

7. Section 326 Cr.P.C., 1973 reads as follows:-

"326. Conviction or commitment on evidence partly recorded by one 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 1 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 1 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 reexamination, if any, as he may permit, the witness shall be discharged.

(2) When a case is trans