Punjab-Haryana High Court
Saurav Garg vs Jai Gopal on 16 January, 2013
Author: Ranjit Singh
Bench: Ranjit Singh
Criminal Revision No. 546 of 2012 (O&M) :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of decision : 16.01.2013
Saurav Garg .....Petitioner
VERSUS
Jai Gopal ....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. M.K. Singla, Advocate and
Mr. Dinesh Kumar, Advocate
for the petitioner.
( in CRR Nos. 546, 1389 & 1390 of 2012)
Mr. Parveen Kumar Garg, Advocate
for the peititoner
(in CRR Nos. 1257 & 1258 of 2012)
Mr. Rupinder Thakur, Advocate for
Mr. R.M. Sharma, Advocate
for the petitioner
( in CRR No. 1272 of 2012)
Mr. Subhash Ahuja, Advocate
for the respondents.
(in CRR No. 1390 of 2012)
Mr. Ritesh Pandey, Advocate
for the respondent
(in CRR Nos. 1272 and 1389 of 2012)
Mr. Mohd. Yousaf, Advocate
for the respondent
(in CRR Nos. 1257 & 1258 of 2012)
Mr. Kirat Singh Sidhu, DAG, Punjab
for the State.
****
RANJIT SINGH, J.
A common ground of challenge is raised against the Criminal Revision No. 546 of 2012 (O&M) :{ 2 }:
judgements passed by the Additional Sessions Judges, Sangrur, in these six Criminal Revision Petitions, whereby the Court has set- aside the orders passed by the trial Magistrates in cases decided under Section 138 of the Negotiable Instruments Act on the ground that the same Magistrate did not decide the cases, who had earlier recorded the evidence in the cases. Accordingly all the six Criminal Revision Nos.546 of 2012 (Saurav Garg Versus Jai Gopal), 1257 of 2012, (Bagirath Rai Versus Tarsem Singh), 1258 of 2012 (Narinderjit Singh Versus Tarsem Singh), 1272 of 2012 (Pargat Singh Versus Mela Singh and another), 1389 of 2012 (Sukhwinder Singh versus Sunil Kumar) and 1390 of 2012 (M/s Sant Ram Budh Ram Versus Narinder Sharma and another) are being decided through this common order. The facts are being taken from Criminal Revision No. 546 of 2012.
Additional Sessions Judges, while deciding these cases, have placed reliance on the judgement of the Supreme Court in the case of Nitinbhai Saevatilal Shah and another Vs. Munubhai Manjibhai Panchal and another, AIR 2011 Supreme Court 3076 . The Hon'ble Supreme Court in this case, has held that Magistrate holding summary trial of cases under Section 138 of the Negotiable Instruments Act (for short, "the Act") has to record the evidence and bring it to finality and the Magistrate who has recorded the entire evidence, if transferred, then the successor magistrate, who delivers the judgement, on the basis of evidence recorded by his predecessor can not be sustained. It is viewed that the successor Magistrate can not proceed with the trial, placing reliance on the evidence recorded Criminal Revision No. 546 of 2012 (O&M) :{ 3 }:
by his predecessor and he has got to try the case denovo.
The Hon'ble Supreme Court has observed that when a criminal trial is conducted in a manner different from that prescribed by the Court, then the trial is bad and question of curing this as an irregularity arising therefrom does not arise. Where the trial is conducted substantially in a manner prescribed but some irregularity takes place in the course of such conduct of trial, that irregularity can be cured. It is on account of this law laid down by the Hon'ble Supreme Court that the Court of Additional Sessions Judges have interfered to set-aside the orders passed by the respective Magistrates in the cases dealt by them under Section 138 of the Act.
In Criminal Revision No.546 of 2012, the charge was framed by Ms.Anshul Berri, S.D.J.M., Sunam, on 15.12.2006 and the evidence was recorded by Sh.Ravdeep Singh Hundal. The trial Magistrate, however, had acquitted accused Saurav Garg for an offence under Section 138 of the Act. Complainant-Jai Gopal accordingly has filed appeal before the Additional Sessions Judge, Sangrur, to challenge this acquittal on the basis of law laid down by the Hon'ble Supreme Court in the case of Nitinbhai Saevatilal Shah (supra). The Additional Sessions Judge has accordingly set- aside the judgement passed by the Magistrate and remanded the case back to the successor court of Sh.Ravdeep Singh Hundal to decide the same afresh, complying with the directions issued by the Hon'ble Supreme Court. Similarly in Criminal No.1390 of 2012, Additional Sessions Judge, Sangrur, has set-aside the order passed Criminal Revision No. 546 of 2012 (O&M) :{ 4 }:
by the Magistrate and has remanded the case back to the successor Court for de novo trial. The magistrate in this case had found the accused guilty and had sentenced him to suffer rigorous imprisonment for one year. In Criminal Revision No.1258 of 2012, Additional Sessions Judge, Sangrur, has adopted the similar Course and has set-aside the order passed by the Magistrate, convicting the accused for an offence under Section 138 of the Act and has remanded the case back for de novo trial. Similar is the position in the other connected revision petitions.
Notice of motion in all the revision petitions was issued and the counsel for the parties have been heard.
The counsel appearing for the petitioners would submit that Additional Sessions Judge was totally misconceived in relying upon the judgement passed by the Supreme Court as in all such cases, the Magistrates have not held the trial of the offence under Section 138 of the Act in a summary manner. Accordingly, the ratio of law laid down by the Hon'ble Supreme Court would not be attracted to the facts of the present case. To show that the Magistrate has not held the summary trial in these cases, reference is made to various zimni orders, which would clearly show that the procedure as prescribed for summary trial was not followed and all these cases were tried otherwise. In support, the counsel for the petitioners have made reference to Darshan Lal Vs. State of Punjab and others, 2012 (3) Civil Court Cases 475, where this Court has held that when Magistrate does not adopt a summary procedure and has adopted a procedure as applicable to summons case, then bar of Section 326 Criminal Revision No. 546 of 2012 (O&M) :{ 5 }:
Cr.P.C would not be applicable.
The summary trial procedure is regulated by Chapter XXI of the Code of Criminal Procedure. Section 260 Cr.P.C. lays down power to try summarily. As per this Section, any Chief Judicial Magistrate or any Metropolitan Magistrate or any Magistrate of Ist Class, especially empowered in this behalf by the High Court, if he thinks fit, may try in a summary way all or any of the offences enumerated in the Section. Section 260(2) of Cr.P.C further provides that when in the course of summary trial, it appears to the Magistrate that the nature of the case is such that it is undesirable to try summarily, the Magistrate shall recall any witness, who may have been examined and proceed to rehear the case in a manner provided by the Court. The procedure for summary trial is given under Section 262 Cr.P.C., which provides that procedure specified in the Code for trial of summons case shall be followed except as hereinafter mentioned. Section 263 Cr.P.C then makes a provision for preparing record in summary trials by providing that in every case tried summarily, the Magistrate shall enter in such form as the State Government may direct the particulars given in the Section. Section 264 Cr.P.C then makes a provision for judgement in cases tried summarily. In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of evidence and a judgement containing brief statement of reasons for finding. The substance of evidence is to be recorded when the evidence is given in the Court and not later on and this expression implies a judicious selection or a precie of that part of the evidence, Criminal Revision No. 546 of 2012 (O&M) :{ 6 }:
which is really material. Section 265 Cr.P.C. thereafter talks of recording judgement.
A perusal of the zimni orders would show that the procedure followed in this case was not commensurate with the summary trial provisions as made in the Code of Criminal Procedure. There may be a criticism of the same from another angle that it is taken unnecessarily long time and the complaints under Sections 138 of the Act, thus, remain pending for years. The summary trial procedure, if adopted, then the provisions of Section 326 Cr.P.C definitely would come into play and the judgement passed by the Hon'ble Supreme Court would be binding on every Court. In this case, neither the evidence was recorded in gist nor the procedure as prescribed for summary trial was followed and the proper procedure for trial was followed. It would mean that the provisions of Section 326 Cr.P.C. would not be attracted in these cases. The steps which are required to be taken when the summary trial procedure is followed, have been noted as under in Rajesh Agarwal Vs. State & Anr., 2010 (4) R.C.R. (Civil) 124:-
"Step I: On the day complaint is presented, if the complaint is accompanied by affidavit of complainant, the concerned MM shall scrutinize the complaint & documents and if commission of offence is made out, take cognizance & direct issuance of summons of accused, against whom case is made out.
Step II: If the accused appears, the MM shall ask him to furnish bail bond to ensure his appearance during trial Criminal Revision No. 546 of 2012 (O&M) :{ 7 }:
and ask him to take notice under Section 251 Cr.P.C. and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused under Section 145(2) of N.I.Act for recalling a witness for cross examinat5ion on plea of defence.
Step III: If there is an application under Section 145(2) of N.I.Act for recalling a witness of complainant, the court shall decide the the same, otherwise, it shall proceed to take defence evidence on record and allow cross examination of defence witnesses by complainant. Step IV: To hear arguments of both sides.
Step V: To pass order/judgment."
This being the position in the present cases, the law laid down by the Hon'ble Supreme Court would not be attracted to the facts of the present cases. Accordingly, the impugned orders passed by the Additional Sessions Judge, Sangrur, can not be sustained and are set-aside.
The revision petitions are, thus, allowed. The cases are remitted back to the Additional Sessions Judge for deciding the respective appeals on merits.
January 16, 2013 ( RANJIT SINGH ) khurmi JUDGE