TMI Blog2013 (7) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... eaningful progress was made till the year 2009. In the year 2010, the learned Magistrate framed charge against the petitioner and thereafter proceeded to try the case as warrant triable. Witnesses were examined and allowed to be crossexamined by the petitioner. At the end of the trial, when the case was fixed by the learned Magistrate for oral submissions, application Ex.93 came to be filed by the petitioner on or around 3.12.2012. In such application, it was contended that as per section 16-A of the PFA, trial had to be conducted summarily. The action of the Magistrate to conduct the case as a warrant triable case was therefore not legal. It was, therefore, prayed that the trial be conducted de nova as summary trial as provided under section 16A of the PFA. 3. The said application came to be dismissed by the learned Magistrate by impugned order dated 31.1.2013. The learned Magistrate observed that the trial has been conducted as a warrant triable case. The accused as well as his advocate participated during the entire trial. Witnesses were examined and cross-examined at length. He further noted that thus I am of the humble opinion that when in the present case, at the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther submitted that when objection was raised to such procedure even before the trial was over, question of such error being curable or not having regard to section 465 of the Criminal Procedure Code would not arise. In other words, in his contention, saving of the judgment or sentence under section 465 would arise only once the trial is over and not before that. 7. In support of his contention, the counsel relied on the following decisions : 7.1 In the case of Ramjibhai Haribhai Chaudhari (supra), wherein the learned Single Judge of this Court in the context of the provisions of sections 138 and 143 of the Negotiable Instruments Act, held that - Therefore, unless and until after hearing the parties to the complaint a specific order is passed by the learned Magistrate and/or Metropolitan Magistrate not to proceed further with the trial as summary trial, all the trials for the offences under Chapter XVII of the Negotiable Instruments Act shall be and to be tried as summary trial only. Merely because the learned predecessor Magistrate has recorded entire evidence and/or proceeded further with the trial as if it is summary trial (sic. summons trial) unless a specific order t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in cases prior to conviction, there is an absolute bar and the offences under section 16(1) of the PFA are to be in a summary manner only provided the Magistrate does not come to the conclusion that nature of the case requires sentence exceeding one year to be passed in the case and for any other reason to be mentioned during the process of the trial. 7.4 Our attention was also drawn to a decision of the learned Single Judge of the Punjab Haryana High Court in the case of Jaswant v. State of Haryana, 2009 Law Suit (P H) 1469 in which finding that the procedure of warrant case was followed from the beginning without hearing the parties and recording order in terms of section 16A of the PFA, the proceeding was quashed. It was observed as under: 9. Reverting back to the instant case, the afore-referred order dated 25.09.1992 reflects non-application of mind by the learned trial Court. It was obligatory upon the magistrate to express his opinion in writing as to under what circumstances the case has been restored to be tried as a warrant case. Thus to say the least of it, the said order is not in consonance with the provisions of Section 16A ibid. 7.5 Counsel for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of any conviction in a summary trial under this section, it shall be lawful for the magistrate to pass a sentence of imprisonment for a term not exceeding one year: Provided further that when at the commencement of, or in the course of, a summary trial under this section it appears to the magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code. As per section 16A of the PFA, notwithstanding anything contained in the Code of Criminal Procedure, offence under section 16(1) shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered by the State Government or by the Metropolitan Magistrate. First proviso to section 16A, however, provides that in the case of any conviction in a summary trial under the said section, sentence of imprisonment that shall be lawful for the Magi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined and proceed to re-hear the case in the manner provided by the Code. Section 262 of the Code provides for the procedure for summary trials. Sub-section (2) thereof provides that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under such chapter. Section 264 provides that in every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. 12. Chapter XIX of the Code lays down detailed procedure for conducting a trial of warrant case by the Magistrates and envisages separate procedure for warrant triable cases instituted on a police report and those instituted other wise than on a police report. Detailed provisions have been made for framing of charge, recording of evidence for the prosecution and that of the defence, etc. In warrant triable cases instituted otherwise than on a police report, sections 244 and 245 envisage recording of evidence even prior to framing of charge and discharge of the accused if on taking such evidence the Magistrate considers that no case against the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution witnesses at length and also to present rebuttal evidence. 15. Section 16A of the PFA uses the expression that all offences under sub-section (1) of section 16 shall be tried in a summary way by a Judicial Magistrate of the first class and that would be so notwithstanding anything contained in the Criminal Procedure Code to the contrary. This prescription, however, is hedged with a requirement of the Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate. In absence of any such prescription, therefore, every case under section 16(1) of the PFA shall have to be tried otherwise than by way of summary trial. It is only when the Magistrate of the first class is so empowered , the case has to be tried summarily. Though the Legislature has used the expression, shall be tried in our opinion, the provision contained in section 16A is an enabling provision and not creating a corresponding right in the accused to insist that every case under the PFA must be tried summarily. Further proviso to section 16A also vests discretion in the Magistrate to discard summary procedure. In other words, under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted detailed trial may not be conducted and he must be subjected only to a summary proceeding. When discarding of summary procedure and adopting a procedure of warrant triable case by the Magistrate was not objected to by the petitioner till the entire trial was over and the case was kept by the learned Judge for oral argument, in our opinion, in absence of any prejudice, for the Magistrate having adopted non-summary procedure, the petitioner s objection must be rejected. 17. At this juncture, we may refer to various decisions touching the matter. 18. The decision of the learned Single Judge of this Court in the case of Ramjibhai Haribhai Chaudhari (supra) needs a close look. It was rendered in the context of the provision contained in section 143 of the Negotiable Instruments Act, sub-section (1) of which provides that notwithstanding anything contained in the Code of Criminal Procedure, all offences under Chapter XVII shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of section 262 to 265, both inclusive, of the Code shall, as far as may be, apply to such trials. The said sub-section contains provisos which read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the premise that in every summary trial, the Magistrate has to try the case as a summons triable case held that the trial was vitiated on account of the successor Magistrate not recalling the witnesses for re-examination and relying upon the evidence recorded by the previous Magistrate. For such purpose, heavy reliance was placed on the decision of the Supreme Court in the case of Nitinbhai Saevatilal Shah (supra). The judgment of the Supreme Court in the case of Nitinbhai Saevatilal Shah (supra) was rendered in the background of a complaint for offence under section 138 of the Negotiable Act which was registered as a summary case. During the course of the trial, the Metropolitan Magistrate, in charge of the case came to be transferred. The successor Magistrate on a pursis filed by both the sides that they had no objection to proceed with the matter on the basis of the evidence recorded by the predecessor Magistrate, considered the evidence led by the complainant earlier and heard the counsel for the parties and rendered the judgment of conviction. Such conviction was upheld by the higher courts. When the issue reached the Supreme Court, it was held that in a summary trial, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. In summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. The reason why the provisions of sub-sections (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only substance of evidence has to be recorded. The Court does not record the entire statement of witness. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on the basis of evidence recorded by his predecessor.Section 326 (3) of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and indeed, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... XXI pertaining to and peculiar to summary trial that in the case of Nitinbhai Saevatilal Shah (supra) the Supreme Court quashed the judgment rendered by the Magistrate convicting the accused on the basis of the evidence in summary trial recorded by the predecessor Magistrate. In the case of Ramjibhai Haribhai Chaudhary (supra), the case was not tried as a summary trial, but as summons triable case. In our view, therefore, the decision of the Supreme Court in the case of Nitinbhai Saevatilal Shah (supra) had no applicability in the facts of the said case. We are, therefore, unable to adopt the same view. 19. In the case of Radhe Shyam Aggarwal (supra), the Supreme Court was considering the objection to the Magistrate adopting summary procedure for offence punishable under section 16 of the PFA. The Supreme Court while rejecting the opposition of the accused on the ground that at no stage there was any challenge to the procedure adopted, observed that in fact, the second proviso to section 16A permits such a course to be adopted. It was further observed that additionally, as rightly contended by the learned counsel for the State, no prejudice has been shown. In that view of the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mains in the matter is that of hearing of argument and to deliver the judgment. The learned trial Magistrate is thus justified in turning down the request made by the complainant for rendering the matter to the earlier stage of recording of evidence. At this stage of the proceedings, in exercise of powers conferred upon this Court under Section 482 of the Code of Criminal Procedure, no interference is called for. The application is, therefore, rejected. 22. In the case of Khitai v. State of M.P., 1995 Cri.L.J.3244, learned Single Judge of the Madhya Pradesh High Court held that the action of the Magistrate adopting warrant triable procedure instead of summary trial for offence under the PFA did not result into any prejudice to the accused and such an irregularity was curable under section 465 of the Criminal Procedure Code. 23. Likewise in the case of Subhash Chand v. State of Haryana, 1991 Cri.L.J. 2481, learned Single Judge of the Punjab Haryana High Court also held that the Magistrate in not following summary procedure for offence under section 16(1) of the PFA only committed an irregularity and in absence of any prejudice to the accused, the trial cannot be stated to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er acquit the accused or in appropriate cases, direct re-trial. 25. In the case of Rosy v. State of Kerala, 2009 Cri.L.J.930, the Supreme Court in a Sessions triable case when found that noncompliance with proviso to sub-section (2) of section 202 did not vitiate the trial unless prejudice caused to the accused was established, refused to order fresh inquiry since objection to non-compliance was raised at the fag end of the sessions trial. It was observed that when the accused had chosen not to raise objection on the premise of omission to examine witnesses before process was issued by the Magistrate, it must be taken that they had no grievance that such omission had occasioned failure of justice. It was further observed that even if there was any omission on the part of the Magistrate before process was issued the accused cannot raise it as an objection for the first time at the fag end of a long drawn trial in the Sessions Court. It was observed that one of the tests to ascertain whether such omission has occasioned failure of justice is incorporated in sub-section (2) of section 465 i.e. whether objection had been taken at any earlier stage regarding such omission and if no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned. Sub-section (2) of section 465 further provides that in determining whether any error, omission or irregularity has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage. Section 465 thus proceeds on the premise that any order which is not passed without jurisdiction or is otherwise void, merely by reason of error or irregularity would not vitiate the proceedings unless it results into failure of justice. In the process of ascertaining whether any failure of justice has occasioned, regard shall be had to the fact whether the objection could or should have been raised at an earlier stage. In the case of W. Slaney v. State of M.P. AIR 1956 SC 116, in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2640, the Supreme Court cautioned the superior courts from interfering in criminal proceedings at interim stages. Section 465 of the Criminal Procedure Code was also referred to in this context. It was observed as under: 15. The facts of this case impel us to say how easy it has become today to delay the trial of criminal cases. An accused so minded can stall the proceedings for decades together, if he has the means to do so. Any and every single interlocutory is challenged in the superior Courts and the superior Courts, we are pained to say, are falling pray to their stratagems. We expect the superior Courts to resist all such attempts. Unless a grave illegality is committed, the superior Courts should not interfere. They should allow the Court which is seized of the matter to go on with it. There is always an appellate Court to correct the errors. One should keep in mind the principle behind Section 465 Cr. P.C. that any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior Court unless such irregularity or infraction has caused irreparable prejudice to the party and requires to be corrected at that stage its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss-examination even at that stage. The petitioner participated in the proceedings. The charge was framed. The witnesses were recalled and cross-examined at length by the defence. Only when the case was fixed for oral arguments, an objection to the procedure was taken. In our opinion, such a procedure being at best irregular and the irregularity being curable, it would be wholly unjust to permit the petitioner to take advantage of his own silence and to raise such a contention at the fag end of the trial. Even going by the philosophy of sub-section (2) of section 465 of the Code of Criminal Procedure, the petitioner s objection cannot be sustained. 31. There is more aspect of the matter. The Sessions Court in the impugned order noted that the previous Magistrate Shri R.K.Pandya was not authorized to conduct summary trial. Learned advocate Shri Tolia for the petitioner was unable to dispute this factual aspect. If that be so, the previous Magistrate had no authority to conduct the case by a summary trial. He, therefore, was not required to pass any order under section 16A of the PFA for not adopting summary procedure. If he had, therefore, commenced the trial and carried it on as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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