Andhra HC (Pre-Telangana)
Dilip Kulkarni And Ors. vs Bahadurmal Chowdary And Sons. And Anr. on 8 July, 2005
Equivalent citations: 2005(2)ALD(CRI)171, 3(2006)BC505
JUDGMENT T.Ch. Surya Rao, J.
1. The criminal petition is directed against the order dated 9.11.2004 passed by the learned Additional Judicial Magistrate of First Class, Nizamabad, in Cri. M.P. No. 5298 of 2004 in C.C. No. 403 of 2001. The petitioners are A.3, A.6, A.8 and A.9 in the above case, which was filed by the first respondent/complainant under Section 138 of the Negotiable Instruments Act (for brevity 'the NI Act').
2. Certain facts need be stated for brevity and better understanding of the matter: Originally the complaint was filed against A. 1 to A. 9. A. 1 is the company, A. 2 is its Managing Director, and A. 3 to A. 9 are the Directors thereof. Since A. 4 and A. 7 died; the case against them was abated. The case against A. 2 was split up as he had become scarce. Ultimately the case was tried as against A. 1, A. 3, A. 5, A. 6, A. 8 and A. 9, They were permitted to be represented by their Counsel under a special vakalath. Eventually after the closure of evidence arguments in the case were heard on 30.6.2003. The Counsel representing the accused under special vakalath was instructed to keep all the accused to be present in the Court on 4.8.2003 without fail to which date the case stood adjourned for judgment. On 4.8.2003 judgment was not pronounced since the accused were absent. On 7.8.2003 it appears that on account of the transfer of the Presiding Officer of the Court the case was adjourned to 11.8.2003. Even on 11.8.2003 the accused were absent. Notwithstanding the same, the judgment was pronounced. The accused were found guilty of the offence and accordingly they were convicted for the said offence. However, the Court adjourned the case to 18.8.2003. A.3, A.6, A.8 and A.9 were present but A.5 was not present as it was represented that he was sick. The case was adjourned to 29.8.2003 to hear the accused on the question of sentence. When A.5 was not present even on 29.8.2003 it was again adjourned to 15.9.2003. On that day since all the accused were absent, N.B.Ws. were issued against them. Subsequently, pursuant to the orders of the High Court of A.P., N.B.Ws. were re-called on 8.10.2004.
3. At that juncture the petitioners filed Crl. M.P. No. 5298 of 2004 requesting for the Court to conduct de novo trial. According to the petitioners, inasmuch as the trial in the case should be summary in nature as per Section 143 of the N.I. Act, under Section 326 of the Criminal P.C., 1973 (for brevity 'the Code') the successor Judge cannot pass the conviction order against the petitioners. The stand taken by the first respondent inter alia in the counter was that summons procedure was followed in conducting the trial and witnesses were examined in detail, the question of ordering de novo trial did not arise. Under the impugned order, the learned Magistrate dismissed the petition. As aforesaid, the petitioners are now assailing the said order.
4. The contention of Mr. Milind Gokhale, learned Counsel appearing for the petitioners, is two-fold, firstly that since Section 326 of the Code has no application to the summary trial cases, a de novo trial has to be conducted; and secondly that sentence is an integral part of the judgment and judgment is not complete till the sentence is passed and, therefore, the successor Magistrate cannot pass the sentence in the case where in his predecessor pronounced the judgment.
5. Mr. M.S. Ramachandra Rao, learned Counsel appearing for the first respondent, on the other hand, represents that since summons procedure has been followed Sub-section (3) of Section 326 has no application and since the judgment was pronounced in open Court and was signed and dated, the whole judgment could not be vitiated and, therefore, either way it is not at all a case where de novo trial shall have to be conducted.
6. In view of the rival contentions, the following questions are germane for consideration in the context:
(1) Whether Sub-section (1) of Section 326 has no application to the present case and therefore it requires a de novo trial to be conducted; and (2) Whether the successor Magistrate can pass the necessary sentence in the case in which the accused were convicted by his predecessor.
7. The facts enumerated hereinabove are not in dispute. Obviously the trial process in this case has been completed and culminated in pronouncing the judgment. Indeed the judgment was delivered in open Court, signed and dated. The petitioners were found guilty and consequently convicted. Sentence however was not passed inasmuch as the accused were not present and perhaps in the perception of the Court they shall be heard before passing the sentence appropriate and adequate to the gravity of the offence perpetrated. The correctness or otherwise of the conviction having not been assailed, there is no need to go into the merits of the case. Having regard to the rival contentions and the nature of controversy involved in this case, it is expedient to notice the provisions of Section 326 of the Code at the outset, which reads as under:
326. Conviction or commitment on evidence partly recorded by one Judge or 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 any 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 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 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 re-examination, if any, as he may permit, the witness shall be discharged.
(2) When a case is transferred under the provisions of this Code from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of Sub-section (1).
(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 submitted to a superior Magistrate under Section 325.
8. It ;s obvious from Sub-section (1) of Section 326 of the Code that the successor Magistrate can act on the evidence recorded by his predecessor either in whole or in part. If he is of the opinion that any further examination is required he may recall that witness and examine him. But there is no need to conduct a re-trial or de novo trial in the case. Indeed, such a need has been dispensed with by the Code of Criminal Procedure.
9. Mr. M.S. Ramachandra Rao. learned Counsel appearing for the first respondent/complainant seeks to contend that there is no need for conducting a de novo trial. In support thereof, he seeks to place reliance upon a judgment of the Apex Court in Ranbir Yadav v. State of Bihar II . By means of an amendment to Sections 350 of the old Code under the Act 26 of 1955, the expression "recommence the inquiry or trial" has been deleted and the proviso appearing underneath the section was substituted by means of a new provision. As a result thereof, the succeeding Magistrate can act upon the evidence recorded by his predecessor and there is no need to conduct a de novo trial. The present Section 326 of the Code is akin to Section 350 of the old Code as amended under the Act 26 of 1955. Section 326 of the Code has also been amended subsequently under the Act 45 of 1978 where under the expression "Judge" has been added. In consequence whereof the Sessions Judge can now act upon the evidence recorded by his predecessor. However, all this is not germane in the instant case since the core of the controversy seems to be as to whether the Magistrate can follow the said procedure in a summary trial case.
10. Sub-section (3) of Section 326 of the Code leaves no room for any doubt. The provisions of Sub-section (1) thereof have no application to summary trials or to cases in which proceedings have been stayed under Section 322 or in which proceedings have been submitted to a superior Magistrate under Section 325 of the Code, Section 143 of the NI Act mandates that the trial in a case filed under Section 138 thereof shall be tried in a summary manner. Coming in the realm of Chapter XXI, Sections 260 to 265 of the Code deal with the procedure to be adopted by the Court in summary trials. According to Section 262 in summary trial cases the procedure specified in the Code for the trial of summons cases shall be followed with an exception that the sentence of imprisonment to be imposed shall not exceed three months. As per Section 264, in every case tried summarily the Magistrate shall record the substance of the evidence and pass a judgment containing a brief statement of the reasons for the finding.
11. Section 260 of the Code empowers the Judicial Magistrate of First Class, if he thinks fit to try in a summary way the offences enumerated inter alia in Sub-section (1) thereof. The details of those offences are not germane in the context inasmuch as Section 143 of the N.I. Act ordains that all offences under Chapter XVII of the N.I. Act shall be tried following the procedure envisaged in Sections 262 to 265 of the Code as far as may be. Hence Sub-section (2) of Section 260 of the Code need be noticed. The provision reads as under:
260. Power to try summarily:(2) When, in the course of a summary trial it appears to the Magistrate that the nature of the case is such that it is undesirable to try it summarily, the Magistrate shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by this Code.
12. It is obvious that the said provision enables a Magistrate to conduct trial in summary trial case by following summons procedure. Similarly Section 259 of the Code enables a Magistrate to convert a summons case into a warrant case. Thus, it is obvious that the Code enables the Judicial Magistrate of First Class to convert a summary case either into a summons case and a summons case into a warrant case, but not vice versa. The only requirement for such conversion is that in the course of trial it should appear to the Court in the interests of justice that such conversion is needed. But if the Magistrate conducts trial in a warrant case adopting summons procedure or a summons case by following the summary procedure, the trial is certainly vitiated. Notwithstanding the procedure adopted while conducting trial, the Magistrate can record the evidence of a witness as his examination proceeds by taking it down in writing and it is not inhibited under any provisions of the Code.
13. It is clear from the record in this case that the learned Magistrate recorded the evidence of the witnesses by taking it down in writing as the examination of the witnesses proceeded following the procedure laid down in Sections 275 and 277 of the Code. It is quite discernible from the judgment delivered in this case that the learned Magistrate has not followed the procedure envisaged in Sections 263 and 264 of the Code. Instead, the judgment has obviously been prepared in a regular manner as is required in a summons case. Even after the pronouncement of the judgment, he adjourned the case to hear the accused on the question of sentence which procedure is contemplated when the case is tried by following the warrant procedure. It is visibly clear from the above indicia that the learned Magistrate in the instant case has not adopted the summary trial procedure. Therefore the vice under Sub-section (3) of Section 326 is not attracted in this case.
14. I am reinforced in my above view by a Division Bench judgment of this Court in Food Inspector, Circle-V, MCH, Hyderabad v. Y. Babji and Ots. 2001(2) ALD (Cri.) 804 (AP). That was a case filed under the provisions of the Prevention of Food Adulteration Act. During the course of trial, the Court adopted summons procedure. Eventually, the case ended in acquittal. In the appeal filed by the State, it was sought to be contended that the judgment of acquittal was passed by a Magistrate who has not recorded the evidence and, therefore, the same could not be sustained in view of Sub-section (3) of Section 326 of the Code. Repelling the said contention and overruling the two judgments of this Court rendered by learned Single Judge in Sarada and Anr. v. The State of A.P. 1995(2) PFA Cases 80 and Chandana Surya Rao v. State 1989 Crl. LJ. 2077, on which reliance was sought to be placed, the Division Bench held that the succeeding Magistrate can act on the evidence recorded by the previous Magistrate inasmuch as the procedure followed by the Magistrate was summons procedure by recording the evidence of the witnesses fully. For the above reasons, the contention that in view of Sub-section (1) of Section 326 of the Code a de novo trial shall be conducted merits no consideration.
15. Having regard to the other contention that the judgment in fact was not delivered and is inchoate and, therefore, the successor Magistrate cannot act upon the same and pass sentence part of the judgment, the controversy seems to have been the restricted to a narrow compass as to whether the matter is to be remitted to the Court below or not for the purpose of passing an appropriate sentence, or after setting aside the conviction it is to be remitted to dispose of the case afresh by delivering the judgment.
16. At this juncture, the learned Counsel appearing for the first respondent seeks to rely upon a judgment of the Apex Court in Narpal Singh v. State of Haryana . That was a case, which was exclusively triable by a Court of Session. The accused was not heard on the question of sentence after the judgment was delivered. The Apex Court while adverting to the significant change brought in under the new Code by incorporating the Sub-section (2) of Section 235, at the end while confirming the conviction, the sentences passed on the appellant and two others were set aside and the matter was remitted to the Trial Court for passing the sentences afresh after hearing the accused. In the process, the Apex Court held in Para 30 thus:
Once the Judge who hears the evidence delivers a judgment of conviction, one part of the trial comes to an end. The second part of the trial is restricted only to the question of sentence and so far as that is concerned, when a case is remitted by us to the Sessions Court for giving a hearing on the question of sentence under Section 235(2) of the Code of Criminal Procedure, 1973, there would be fresh evidence and the principle that the Sessions Judge may not act on evidence already recorded before his predecessor and must conduct a de novo trial would not be violated. In these circumstances, therefore, the ratio of Payare Lal case AIR 1962 SC 690, mentioned above cannot be applied or projected into the facts and circumstances of the present case or to cases where the trial has ended in a conviction but the matter has been remitted to the Trial Court for hearing the case only on the question of sentence.
It may be mentioned here that by the time the above judgment cane to be rendered by the Apex Court Section 326 of the Code was not amended enabling the succeeding Sessions Judge to act upon the evidence recorded by his predecessor. Even then the Apex Court ruled out a de novo trial and remitted the matter only for hearing the accused on the question of sentence.
17. The situation obtaining in the instant case is somewhat different, having regard to the fact that after pronouncing the judgment whereunder the accused had been convicted and after signing and dating the judgment, the learned Magistrate adjourned the case to a future date for the purpose of hearing the accused on the quantum of sentence. It admits of no doubt that the sentence is an integral part of the judgment. Nevertheless, sentence in the case of conviction or a direction to set the accused at liberty in the case of an acquittal shall only follow the judgment and shall not precede it. Therefore, after pronouncing the judgment, if the Court convicts the accused having found him guilty of the charge, it shall have to proceed further to sentence him appropriately. In the event of the Court finding the accused not guilty of the offence alleged, it should acquit him and that acquittal shall be followed by a direction that the accused shall be set at liberty directing his bail bonds to be cancelled forthwith. It is eminent that after pronouncement of the judgment, the Criminal Court shall have to perform yet another function, both in the case of conviction or acquittal. Now, under the scheme of the Code, in respect of Sessions cases or warrant cases, the accused shall be examined on the question of sentence in the event of his conviction of the offence alleged. Either party to the case is entitled to adduce evidence and perhaps the Court may have to adjourn the case after pronouncing the judgment so as to enable either party to adduce evidence, if need be, on the question of sentence. As can be seen from the object of the Code in having incorporated Sub-section (2) of Section 235 and Sub-section (2) of Section 248, the Code seems to have bifurcated the trial, one part from the beginning of the hearing till it culminates in conviction by pronouncing the judgment, and the other part after pronouncement of the judgment to hear the accused on the question of sentence and pass appropriate sentence albeit sentence is an integral part of the judgment and eventually the judgment contains conviction as well as sentence. Indeed, it has been held by the Apex Court in Narpal Singh v. State of Haryana (supra) in Para 30 thus:
Once the Judge who hears the evidence delivers a judgment of conviction, one part of the trial comes to an end. The second part of the trial is restricted only to the question of sentence....
18. Invariably, after pronouncing the judgment and if it ends in conviction, tire Judge should sign and date it. He shall then proceed to hear the accused on the question of sentence. Section 361 of the Code mandates that the Judge shall assign reasons if he is not inclined to apply the beneficial provisions of Section 360 of the Code or Sections 3 and 4 of the Probation of Offenders Act. At the end by assigning the reasons, he shall pass appropriate sentence. After passing the sentence, the Judge has to repeat the same ritual of signing and dating underneath the sentence part of the judgment.
19. Turning to Section 353 of the Code, which mandates that the judgment shall be pronounced in open Court by the presiding officer immediately after the culmination of the trial or at subsequent time of which notice is given to the parties or their pleader. Where the judgment is pronounced by reading the operative part thereof, the Judge is required to date and sign the judgment in open Court. In my considered view, Section 353 of the Code shall have to be, read along with Section 235(2) or Section 248(2) of the Code, which are the new provisions incorporated in the Code pursuant to the recommendation made by the Law Commission. It shall also have to be read along with Section 326 of the Code, which enables the successor Magistrate/Judge to continue the proceedings.
20. It is not germane, quite obviously, having regard to the matrix of the case, the question as to whether a judgment prepared by the Magistrate who ceased to be the Magistrate and succeeded by his successor can be signed and dated by his successor. Even in such cases, the consistent view has been taken by the Madras High Court was that pronouncement of the judgment was not a part of the trial and there had been no irregularity, much less illegality, in pronouncing the judgment by the successor of the Magistrate who wrote it. Vide In re Bhogale China Somayya AIR 1933 Mad 251 and Thikka Surya Rao v. Srigangu Sathiraju AIR 1948 Mad 510. Even the Allahabad High Court had taken the same view in Mohammad Sattar v. Behari Lal Jain AIR 1948 All 339.
21. Mr. Milind Gokhale, learned Counsel appearing for the petitioners, seeks to place reliance upon a judgment of the Bombay High Court in Mahadeo Apparao Wale v. Isamiya Abdul Aziz 1958 Bom L.R. 1141. The Division Bench of the Bombay High Court was of the view that it was not open to succeeding Magistrate to act and give judgment on the evidence recorded by his predecessor and Section 350(1) of the Code, 1898 does not empower him to deliver the judgment written by his predecessor. The same view has been taken by the High Court of Patna. Vide H. Shafi v. R. Thakur .
22. There appears to be a cleavage of opinion on the point. The judgments rendered by the Madras High Court are binding upon this Court qua the judgments rendered by other High Courts which have a persuasive value notwithstanding. It is appropriate here to consider the judgment of the Apex Court in Surendra Singh v. State of U.P. (1954) SCR 330. According to the facts in that case, the appellants, who were convicted by the Trial Court one under Section 302 and the other two under Section 225 of the Indian Penal Code and sentenced to death under Section 302 and three years rigorous imprisonment under Section 225 of the Indian Penal Code respectively, carried the matter in appeal to the Allahabad High Court. The appeal, was heard by a Division Bench and the judgment was reserved. Before the judgment could be delivered, one of the members of the Division Bench was transferred from Lucknow Bench to Allahabad Bench. While at Allahabad, the transferred Judge dictated a judgment purporting to be the judgment of the Bench. He signed every page of the judgment as well as at the end but did not date it. The judgment was sent from there to the other Judge at Lucknow. In the meanwhile, the learned Judge died before it was delivered. After his death, the Judge at Lucknow Bench purported to have delivered the judgment, signed and dated it. The result was dismissal of the appeal while confirming the conviction and sentences. When it was assailed in the Apex Court, it was held that the judgment which was purported to have been delivered on 5.1.1953 was not a valid judgment because the other member of the Division Bench died before it could be delivered. Consequently the appeal was allowed. In the process, at page 337 it was held thus:
As soon as the judgment is delivered, that becomes the operative pronouncement of the Court. The law then provides for the manner in which it is to be authenticated and made certain. The rules regarding this differ but they do not form the essence of the matter and if there is irregularity in carrying them out it is curable. Thus, if a judgment happens not to be signed and is inadvertently acted on and executed, the proceedings consequent on it would be valid because the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of its subsequent authentication.
23. From the above, it is obvious that delivery of the judgment in open Court is quite different from the manner in which it is to be authenticated and made certain. Once the judgment was delivered validly, even if it was not signed inadvertently it would stand good despite the defects in the mode of its subsequent authentication. This authoritative pronouncement of a three-Judge Bench of the Apex Court, in my considered view, would set at naught the divergence as discussed hereinabove. In the instant case after pronouncement of the judgment by reading out the operative part thereof, it was signed and dated by the Magistrate who wrote it. The second part of the judgment, namely, hearing the accused on the question of sentence and recording reasons as mandated in Section 361 of the Code has been left to the successor inasmuch as the accused were not present by then and warrants had to be issued for their production in the Court so as to hear them on the question of sentence. For the above reasons the conviction of the accused is not vitiated.
24. Contextually yet another fact emerges for consideration in the instant case. As discussed hereinabove, there is no legislative mandate obligating the Court to hear the accused on the question of sentencebe it a summons trial or a summary trial. Notwithstanding the same, one shall not be oblivious of the legislative intention in having incorporated separate provisions under Sections 235 and 248 of the Code in respect of Sessions procedure and warrant procedure respectively.
25. The Law Commission in its 48th Report recommended for incorporation of a provision to hear the accused on the question of sentence. It is appropriate here to quote the same as under:
It is now being increasingly recognized that a rational and consistent sentencing policy requires the removal of several deficiencies in the present system. One such deficiency is the lack of comprehensive information as to characteristics and background of the offender.
The aims of sentencingthemselves obscurebecome all the more so in the absence of information on which the correctional process is to operate. The public as well as the Courts themselves are in the dark about judicial approach in this regard.
We are of the view that the taking of evidence as to the circumstances relevant to sentencing should be encouraged, and both the prosecution and the accused should be allowed to co-operate in the process.
26. The need to hear the accused has been emphasized by the Apex Court in Shiv Mohan Singh v. State of Delhi . The observations of the Apex Court in that regard may profitably be excerpted hereunder thus:
The humanist principle of individualizing punishment to suit the person and his circumstances is best served by hearing the culprit even on the nature and quantum of the penalty to be imposed.
At the end of Para 23, the Apex Court highlighted the factors to be considered by the Court on the question of sentence thus:
The heinousness of the crime is a relevant factor in the choice of the sentence. The circumstances of the crime, especially social pressures which induce the crime which we may epitomize as "a just sentence in an unjust society" are another consideration. The criminal, not the crime, must figure prominently in shaping the sentence where a reform of the individual, rehabilitation into society and other measures to prevent recurrence, are weighty factors.
27. In Dagdu v. State of Maharashtra , the Apex Court held thus:
The right to be heard on the question of sentence has a beneficial purpose, for a variety of facts and considerations bearing on the sentence can, in the exercise of that right, be placed before the Court which the accused, prior to the enactment of the Code of 1973, had no opportunity to do. The social compulsions, the pressure of poverty, the retributive instinct to seek an extra-legal remedy to a sense of being wronged, the lack of means to be educated in the difficult art of an honest living, the parentage, the heredityall these and similar other considerations can, hopefully and legitimately, tilt the scales on the propriety of sentence.
28. From the above ii is manifest that the right given to the accused to be heard on the question of sentence has a beneficial purpose. It enables the accused to lead evidence as to circumstances relevant to the appropriate sentence and help the Court in passing just sentence having due regard to the heinousness of the crime, the humanist principle of individualizing punishment to suit the person and his circumstances, the type of criminal before it but not the crime which shall figure prominently in shaping the sentence.
29. Having due regard to the above purpose and object behind the sentencing policy, there is no reason as to why it shall be limited to Sessions cases and warrant cases alone. When it is said that the criminal but not the crime must figure prominently in shaping the sentence and that it has a beneficial purpose, I am of the considered view that the benefit shall equally be extended to the criminal who has been tried following the summons procedure and as a matter of that summary trial procedure. Therefore, it seems imperative to hear the accused on the question of sentence even in summons cases or summary trial cases since no appropriate sentence can be passed without hearing the accused and in the absence of relevant criteria which make the sentence adequate and appropriate. For the above reasons, the accused shall be heard before passing the sentence in all criminal cases notwithstanding the procedure to be adopted in trying the said cases. Therefore, the Court below has not committed any illegality in adjourning the case to hear the accused on the question of sentence.
30. For the above reasons, the criminal petition must fail and is dismissed at the threshold.