THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL REVISION CASE No.2625 of 2013

ORDER:

This Criminal Revision Case is filed by the petitioner/accused under Sections 397 and 401 of Cr.P.C. seeking to set aside the Order dated 10.12.2013 passed in Crl.M.P.No.2108 of 2013 in C.C.No.282 of 2013 on the file of the learned XIV Special Magistrate, Hyderabad, whereby the petition filed by the petitioner/accused under Section 326(3) of Code of Criminal Procedure, 1973, seeking to conduct fresh trial in C.C.No.282 of 2013 was dismissed.

2. Heard learned counsel for the petitioner and learned Assistant Public Prosecutor for respondent No.1 – State.

3. The backdrop of the instant cases on hand is that respondent No.2 – Complainant filed a complaint under Sections 190 and 200 of Cr.P.C. against the petitioner for the offence punishable under Section 138 of Negotiable Instrument Act, 1881 before the learned VI Metropolitan Magistrate, Cyberabad, Medchal, and it was registered as Calendar Case and tried under summons procedure. On point of jurisdiction, the said complaint was re-submitted in the Court of the III Additional Chief Metropolitan Magistrate, Nampally, Hyderabad and the same was registered as Calendar Case but not as summary trial case. After the evidence was recorded, by an administrative order, the said case was transferred to learned XIV Special Magistrate, Hyderabad.

4. While the trial Court proceeding with the matter, petitioner/accused filed an application for retrial of the complaint as per provisions provided under Section 326(3) Cr.P.C and prayer was made that evidence be recorded de-novo by the Successor Court. The application of the petitioner was dismissed on the ground that the complaint was tried from the very beginning as summons case and not as summary case. The order dated 10.12.2013 passed in Crl.M.P.No.2108 of 2013 is subject matter of challenge in the present petition.

5. Learned counsel for the petitioner submits that the evidence in the present case was recorded by the earlier learned Magistrate and now the case is pending before another learned Magistrate. As per provisions of Section 326(3) Cr.P.C, de-novo trial is required but still his application has been dismissed, which is contrary to the provisions as well as settled proposition of law. Learned counsel for the petitioner also submits that the offence under Section 138 of the Act was to be tried summarily and the application has been rejected by holding that it has been tried as a summons case. In summary proceedings, Successor Judge or Magistrate has no authority to proceed with the trial from a stage at which it was left by the former Magistrate. Learned counsel for the petitioner also submits that the case of the petitioner is squarely covered by the judgment of Apex Court in Nitinbhai Sarvatilal Shah v. Manubhai Manjibhai Panchal1

6. The grievance of the petitioner in the present case is that the impugned order has been passed without taking into consideration the view taken by the Hon'ble the Supreme Court in Nitinbhai Sarvatilal Shah's (supra) as the case has not been dealt with in accordance with the procedure prescribed for summary trial but it was treated as of summons case. The petition filed by the petitioner has wrongly been dismissed without taking into consideration of this fact. Section 326(3) Cr.P.C is reproduced as under:-

"(326) Conviction or commitment on evidence partly recorded by one Magistrate and partly by another.-

(1)….. (2)…..

(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 322 or in which proceedings have been sub-mitted to a superior Magistrate under section 325."

1 2011 (4) RCR (Criminal) 148

7. The Hon'ble Supreme Court in Nitinbhai Sarvatilal Shah's case (supra) has observed in para-17 of the judgment as follows:

"17. The mandatory language in which Section 326(3) is couched, leaves no manner of doubt that when a case is tried as a summary case a Magistrate, who