Allahabad High Court
Anil Kumar Agarwal vs The State Of U.P on 4 December, 2014
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Judgment reserved on: 14.11.2014
Judgment delivered on: 04.12.2014
AFR
Court No. - 21
Criminal Misc. Application (U/s 407) No. 67 of 2014
Anil Kumar Agarwal S/o Late M.B. Lal
R/o9/839 Indria Nagar, P.S. Indria Nagar,
District- Lucknow ..............Petitioner
Versus
1. State of U.P.
2. Praveen Kumar Singh S/o Mahipal Singh (M.P. Singh)
R/o D1/701, Eldico Garden State, Raipurwa,
P.S. Raipurwa, District- Kanpur
3. Deepak Dave S/o Late Ram Dev Maurya
R/o 4/12 Vivek Khan, P.S. Gomti Nagar
District- Lucknow
4. Badshah Singh S/o Late Rameshwar Singh
R/o Village & Post Kharela, P.S. Kharela
District- Mahoba
5. Govind Saran Srivastava S/o Ramji Saran Srivastava
R/o 4/223 Vivek Khan Gomti Nagar, P.S. Gomti Nagar
District-Lucknow
6. Ajay Kumar Dohrey S/o Late Nathu Ram Dohrey
R/o D-1050 Indira Nagar, P.S. Indira Nagar
District- Lucknow
7. Babu Singh Khushwaha S/o Sri Bhagwat Prasad Khushwaha
R/o Village- Pakhrauli, Tehsil & P.S. Baberu
District- Banda
8. Ram Bodh Maurya S/o late Ram Dev Maurya
R/o Village Sardeeh, P.S. Deorara, District-Pratapgarh
Presently R/o D-20 Sector-30 Noida, P.S. Sector-20
District- Gautam Budh Nagar
9. Brahm Prakash Singh @ B.P.Singh S/o Late Bharosa
R/o 94 Vaishali Enclave, Sector-9, Indira Nagar
P.S. Indira Nagar, District- Lucknow
10. Dinesh Kumar Sahu (D.K.Sahu) S/o Late Bansi Dhar Sahu
R/o Phase 149, Utsav Mahanagar, P.S. Izzatnagar
District- Bareilly
11. Sanjay Kumar S/o Sahdev Prasad
R/o H. No. 224 behind Prathmik Vidyalay, Dhinnor,
P.S. Sadar Bazar, District- Shahjahanpur
12. Chandra Dev Ram Yadav S/o Sri Kashi Nath Yadav
R/o Village Kathghar, P.S. Singhasi, District Azamgarh
13. Ranganath Mishra S/o Late Keshav Prasad Mishra
R/o Village Sahsopur, P.S. Aurai
District- Sant Kabir Nagar, Bhadohi
14. Pankaj Tripathi S/o Radhey Shyam Tripathi
R/o 94 MIG Sector-E, P.S. Aliganj
District- Lucknow ..............Opp. Parties
Counsel for Applicants:- Qazi Sabihur Rahman
Counsel for Respondent:- A.A.G., Suniti Sachan Nandit Srivastava,
Dr. Salil Kumar Srivastava
Hon'ble Vishnu Chandra Gupta,J.
Judgement This application under Section 407 Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.) has been filed by the petitioner/accused for transfer of Criminal Case No. 4 of 2012 having Crime No. 64 of 2012, under Sections 409, 420, 467, 468, 471, 120-B, 204, 201 I.P.C. And 7/13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, P.S. Hussainganj, District-Lucknow from the Court of Special Judge, Anti Corruption (UPSEB), Lucknow to the Court of Additional Sessions Judge, Court No. 15/ Special Judge Gangsters Act, Lucknow presided over by Shri Lalloo Singh.
The transfer was sought on the ground that the Special Investigation Bureau (Cooperative Cell), Lucknow, after investigation in the matter filed separate charge sheets on different dates against 15 accused persons in the Court of learned Sessions Judge, Lucknow. Learned Sessions Judge, Lucknow after taking cognizance in all the cases pertaining to aforesaid case transfer the cases for trial after consolidating them to the Court of Special Judge Anti Corruption (U.P.S.E.B.).
In a writ petition No. 3359 (MS) of 2014 filed by one accused Badshah Singh direction has been issued to decide the trial expeditiously by taking the case on day to day basis without granting any frivolous and unnecessary adjournment to either of the parties.
Another accused Ranganath Mishra filed a Special leave petition before Hon'ble Supreme Court which was decided on 14.07.2014 with the direction that the charges have been framed against the appellant and nine witnesses have been examined and High Court already ordered that trial to proceed on day to day basis, therefore, trial must be completed within a period of three months, if the same is not so completed. With this observation, the appeal of appellant Ranganath Mishra was dismissed.
In trial 26 prosecution witnesses were examined and thereafter on 19.08.2014 prosecution closed its evidence. The accused were examined under Section 313 Cr.P.C. till 21.08.2014. Thereafter 8 defence witnesses were produced before trial Court till 26.08.2014 and defence evidence was closed. Thereafter, arguments of the parties were started and concluded on 02.09.2014. The case was then listed for writing of the judgment by the then Presiding Officer, namely, Shri Lalloo Singh on 03.09.2014. Shri Lalloo Singh was transferred from that court and taken over charge in the same session division of Lucknow as Additional Sessions Judge court No.15/ (Special Judge Gangsters Act) vide Court Notification No.812/JR(S) 2014 dated 02.09.2014. Sri Akhilesh Duby after transfer vide Court Notification No.811/JR(S) 2014 dated 02.09.2014 taken over charge of the Court of Anti Corruption (UPSEB). After transfer of Sri Lallo Singh Additional Sessions Judge in another Court of the same session division an application under Section 408 Cr.P.C. was moved before the learned Sessions Judge, Lucknow on the ground that the entire evidence of the case have been recorded by Shri Lalloo Singh and he is still posted in Lucknow session division in other Court, therefore, the case be transferred to the Court presided over by Shri Lalloo Singh, learned Additional Sessions Judge, Lucknow. It has been urged that the Government of Uttar Pradesh by notification dated 19.02.2008 conferred powers upon all Sessions Judge and Additional Sessions Judge working in a Sessions Division to exercise jurisdiction for conducting case under the Prevention of Corruption Act. The copy of the aforesaid Notification is annexed as Annexure No. 7 to the petition.
The application for transfer of case was dismissed by Session Judge on 15.09.2014. Thereafter, this petition was presented before this Court on 22.09.2014 without impleading the other co-accused. On direction of the Court, all other accused persons were impleaded vide order dated 05.11.2014. Except the State none of the accused persons opposed the transfer application moved by the applicant Anil Kumar Agarwal.
The State filed counter affidavit alleging therein that in fact application under Section 311 Cr.P.C. was filed by accused Babu Singh Kushwaha and Ram Bodh Maurya in the month of August 2014 which was not decided before listing the case for argument or for writing of judgment. These applications were decided on 23.09.2014 by the successor Judge of Court of Special Judge Anti Corruption (UPSEB),Lucknow. Against the order dated23.9.2014 a Criminal Revision No. 531 of 2014 was also filed which is still pending before this Court. It was further contended that on 23.09.2014, another application under Section 243/91 Cr.P.C. was filed by accused Ajay Dohre to summon the original record relating to auction in the light of earlier order passed on 21.08.2014. The said application was allowed on 29.09.2014 and thereafter statement of Shri Satyanand Chauby was recorded. One more application under Section 311 Cr.P.C. has been filed by accused Rang Nath Mishra on 10.10.2014, which has been rejected by the trial Court on 14.10.2014. An application was also pending, which was moved by Badshah Singh on 02.09.2014. The copy of the order sheets from 02.09.2014 to 13.10.2014 was also filed with counter affidavit as Annexure CA-2. It was further submitted that the matter relates to scam of LACFED involving multi crore of rupees and wherein four ex-ministers are facing trial.
Replication has been filed by Anil Kumar Agarwal who moved transfer application but no other accused has filed objection against the application moved by Anil Kumar Agarwal.
So far as the factual matrix of case is concerned the correctness of the same has not been disputed by the parties as is evident from the pleading of the parties and the documents filed in support thereof.
I have heard the learned Counsel for the applicant, other co accused respondents and the Learned AAG and gone through the record of the case.
The learned AAG Smt Suniti Sachan would submit that present applicant is seeking repeated adjournment on the ground of pendency of the transfer application and he is creating hurdles in disposal of trial. It was further submitted that the argument on behalf of Deepak Dave and Sanjay Kumar has already been concluded and argument on behalf of Braham Prakash Singh @ B.P.Singh were going on. The copy of notification issued by the High Court were also annexed with counter affidavit by which the transfer of the Presiding Officers were taken place. It was further submitted that Shri Lalloo Singh vide order dated 07.06.2014 had taken charge of Special Judge Anti Corruption(UPSEB) and again transferred from this Court vide notification dated 02.09.2014. It was further submitted that in view of Section 326 Cr.P.C. the case could not be transferred to the Court presided over by ASJ Sri Lallu Singh because Shri Akhilesh Dube is competent to decide this case and Shri Lalloo Singh has seized to exercise the jurisdiction in the aforesaid case. The case can be disposed of keeping in view the of provisions made under section 326 Cr.P.C. and submitted that this application has no merit and is liable to be rejected.
This transfer application once again pressed on the ground before this Court that the cardinal principal of law in criminal trial is that it is a right of an accused that his case should be decided by a Judge who has heard the whole of it as stated by Hon'ble Supreme Court in Pyare Lal v. State of Punjab , AIR 1962 SC 690. and if Presiding Officer of such Court is transferred from that Court in different Court of the same sessions division and has not ceased to exercise the jurisdiction to decide the case than in that event the case normally be transferred in the Court presided over by earlier Presiding Officer. Section 326 will not be applicable which provide the rule of convenience in the judicial administration for deciding the cases and is an exception to the general Rule and it does not taken away the aforementioned right of the accused. The transfer of the case to the Court presided over by earlier Presiding Officer, who recorded the entire evidence, is also necessary for the fair trial as during the examination of witnesses in the Court he observed the demeanour under section 280 Cr.P.C. .
The moot question for determination in this petition for transfer is;
whether accused has any right to get his case decided by the Judge who wholly or partly recorded evidence during trial and transferred from that Court to another Court in the same Session Division?
It is in the above context Section 326 of the Code has to be read. That section is extracted herein below:
"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 enquiry 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."
For the application of Section 326 of the Code three elements must exist all together:
1. A Judge should have recorded the evidence in the case either in part or in whole.
2. The said Judge should have ceased to exercise jurisdiction in that case,
3. and another Judge should have succeeded him and such successor Judge must have jurisdiction to try the offences concerned.
If the above conditions are complied with, the successor Judge stands empowered to act on the evidence already recorded in the case.
In this case it is not disputed that earlier Presiding officer (Sri Lallu Singh) of the Court of Special Judge Anti Corruption (UPSEB) before his transfer from this Court recorded all 26 prosecution witnesses and 8 defence witnesses and than case was listed for writing of judgment. It is also not in dispute that successor Judge of Court of Special Judge Anti Corruption (U.P.S.E.B.) have jurisdiction to try the offences concerned and also recorded evidence of some of the witnesses of defence and also decided some applications left to be decided by his predecessor.
The main controversy is on the issue;
Whether transferred judge have 'ceased to exercise jurisdiction in that case ?
The learned Counsel for the applicant would submit that transferred ADJ has not been transferred from session division Lucknow to any other sessions division. In view of notification of State Government issued on 19.2.2008 having no.444/chha:-Pu--9-2008-31(8)/08 by Home(Police) Section-9 every Session Judge and Additional Session Judge have been authorised to act as Special Judge under the provisions of Prevention of corruption Act,1988 for the area in that district or on those districts over which they are competent to exercise jurisdiction as Sessions Judge or Additional Sessions Judge. As such on transfer of a particular Additional Session Judge from one court to another in the same district would continue to exercise the powers of Special Judge under the provisions of Prevention of Corruption Act 1988. Therefore, the term "have ceased to exercise jurisdiction in that case" would not attract in this case and the earlier Presiding Judge of Special Judge Anti Corruption (UPSEB) would not have ceased to exercise jurisdiction in this case. In such situation the provisions of section 326 CrPC of Code shall not apply. It is now well settled that if section 326 CrPC would not apply the right of accused to get his case decided by the judge who partly or wholly recorded the evidence in the case will subsist and accused would be entitled to invoke his aforesaid right as held in Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal, (2011) 9 SCC 638.
Learned counsel for the petitioner has also relied upon judgment of Division Bench of this Court reported in 1983 Criminal Law Journal Page no. 205, Punjab Singh and others V. State of U.P. The Division Bench while considering the controversy involved in the present case ruled after considering the provisons contained under Section 194 Cr.P.C. that seizure of jurisdiction may occurred due to natural causes like death or retirement of the judge or in other similar situation, or transfer of judge outside of the Sessions Division or transfer of case by special order in respect of judge or general or special order in respect of case or transfer of case by judicial order. It was further observed that the Sessions Judge is prohibited from recalling or transferring part heard case under Section 409 Cr.P.C. in view of decision in Criminal Misc. Case No. 747 of 1971 and Criminal Misc. Case No. 3318 of 1972 decided on 17.09.1974 . Accordingly, it was held that the right of an accused that his case should be decided by a judge, who heard and recorded the evidence can not be taken away unless the jurisdiction of the first judge to continue the trial is taken away expressly or by necessary implication either under the statutory provision or an order passed to that effect by a competent authority. The judge shall continue to exercise the jurisdiction to continue with a part heard trial and would not be deemed to have been divested of it merely because a change has been taken place in his designation.
On the Contrary the learned AAG Smt. Suniti Sachan has submitted that Section 326 CrPC is applicable in this case because as soon as the presiding judge transferred from particular Court he or she ceased to exercise jurisdiction in all those cases which were pending in that particular Court on the date of his transfer. She also urged that Sri Lallu Singh, earlier Presiding officer was not entrusted with the case as persona designata and the successor Judge being competent to act as special judge under Prevention of Corruption Act,1988 by virtue of above mentioned State Government notification dated 19.2.2014, can decide the case. In such circumstances the accused have no such right to get the case decided by the judge who partly or wholly recorded the evidence in the case.
The Law Commission in its 41st Report recommended in this regard:
"It is obviously desirable that in serious cases the whole evidence should be heard by the Judge who finally decides the case. However, having regard to the realities of the situation, it is necessary to make some provision for cases where such transfers do take place, because a mandatory provision for a de novo trial may often cause considerable inconvenience and hardship. We, therefore, propose to extend the section to Judges of Sessions Courts by referring to ''Judge or Magistrate' instead of ''Magistrate' only."
The aforesaid recommendation was later accepted by the Government and was finally approved by Parliament through Section 27 of Act 45 of 1978.
In Bhaskar v. State, (1999) 9 SCC 551, their Lordships ruled in regard to section 326 CrPC in paras 14 and 15 as under:-
"14. The legislative intention is clear from a reading of the section that the words "succeeded by another Judge" must get a wide amplitude. It is for the said purpose that sub-section (2) is incorporated bringing even cases transferred from one Judge to another, within the scope of the section. The words "such jurisdiction" in sub-section (1) are not intended to narrow down the ambit of the provision to Judges who could have exercised exactly the same jurisdiction which his predecessor Judge exercised. It is enough that the successor Judge has jurisdiction to try the offences sought to be proved against the accused.
15.The archaic concept was that the very same judicial personage who heard and recorded the evidence must decide the case. That concept was in vogue for a long time. But over the years it was revealed in practice that fossilisation of the said concept, instead of fostering the administration of criminal justice, was doing the reverse. Very occasionally the judicial officer of one court was changed and was replaced by another. As evidence had to be recorded afresh by the new officer under the old system, witnesses who were already examined in the cases at the cost of considerable strain and expenses -- not only to them but to the exchequer -- were resummoned and re-examined. The litigation cost thereby inflicted on the parties used to soar up. The process would have to be repeated over again if such next judicial personage also was changed. Eventually it was learnt that the object sought to be achieved by such repetitions, when compared with the enormous cost and trouble, was not of much utility. Hence the legislature wanted to discontinue the aforesaid antediluvian practice and decided to afford option to the successor judicial officer. The legislature conferred such option only on the Magistrates at the first instance and at the same time empowered them to re-examine the witnesses already examined if they considered such a course necessary for the interest of justice. As the new experiment showed positive results towards fostering the cause of criminal justice the Law Commission recommended that such option should advisedly be extended to Judges of all other trial courts also."
It is true that the Division of this Court ruled that if the presiding Judge has not been transferred out of the District/Session Division will continue with the part heard trial . But the Apex Court in Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392, examined the words "ceases to exercise the jurisdiction therein" used in section 326 after keeping in view the divergent opinions of the different High Courts and held that in view of changes made by adding sub section 2 in section 326, giving right for further examination of any witness whose evidence has already been recorded or to summon any such witness for further examination, cross of examination or re-examination to the succeeding Judge or Magistrate, the right of accused to get the case decided by judge who partly or wholly recorded the evidence in the case does not exist.
In Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392, Their Lordships of Supreme Court had discussed the term "ceases to exercise jurisdiction therein" in para 17 and18 as quoted herein below:
"17. To appreciate the above contentions of Mr Jethmalani it will be imperative to first refer to the legislative history behind Section 326 of the Code. In the Code of 1898 the corresponding section was Section 350 and, so far as is material for our purposes, read as under:
"(1) Whenever any 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 Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself or he may re-summon the witnesses and recommence the inquiry or trial.
Provided as follows:
(a) in any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them be re-summoned and reheard;
(b) the High Court or, in cases tried by Magistrates subordinate to the District Magistrate, the District Magistrate may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the Magistrate before whom the conviction was held, if such Court or District Magistrate is of opinion that the accused has been materially prejudiced thereby, and may order a new inquiry or trial."
(emphasis supplied) In interpreting the words "ceases to exercise jurisdiction therein" in the above-quoted sub-section (1) some of the High Courts held that Section 350 was intended to provide for a case where an inquiry or trial had commenced before one incumbent of a particular post and that officer had ceased to exercise jurisdiction in that post and was succeeded by another officer, whereas some other High Courts held that it referred to the inquiry or trial and not to a particular post. Similarly the words "succeeded by another Magistrate" were interpreted by some High Courts as importing that the first Magistrate had left his post but other High Courts held that the word ''succeeded' should not be construed in the narrower sense. Though, in our view, the word ''therein' appearing after the words "ceases to exercise jurisdiction" in the context of the preceding words "in an inquiry or trial" admits of no doubt that it refers to the inquiry or trial, the Legislature thought it necessary to add the following sub-section to Section 350(1) by Section 4 of Act XVIII of 1923, to put the issue beyond any pale of controversy.
"(3) When a case is transferred under the provisions of this Code from one Magistrate to another, 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)."
18. The next legislative change in Section 350 of the Code of 1898 was brought about by Act 26 of 1955. By that, in sub-section (1) of the section for the words "or he may re-summon the witnesses and recommence the inquiry or trial" and the proviso, the following proviso was substituted:
"provided that if the succeeding 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."
19. When the Code of 1898 was repealed and replaced by the Code, Section 350 was renumbered as 326 without any textual change. However, later on by the Criminal Procedure Code (Amendment) Act, 1978 the section was amended to vest the power and discretion exercisable thereunder by a Magistrate to a Judge also.
20. From a comparative reading of sub-section (1) of Section 350 as it stood prior to its amendment in 1955 and as it stands since then with the change in its numeral and inclusion of the word ''Judge' therein we find that the discretion earlier given to the Presiding Officer of the Court to act on the evidence recorded by his predecessor or partly recorded by his predecessor and partly recorded by him still remains. But so far as the other option is concerned, while earlier he could re-summon the witnesses and recommence the inquiry or trial -- which necessarily meant a de novo trial -- he can now only re-summon a witness who has already been examined for further examination and discharge him after such further examination, cross-examination and re-examination, if any. It is evident therefore that now the Magistrate or Judge can exercise his judicial discretion only for further examination of a witness already examined and not for fresh examination of witnesses for a fresh trial. Obviously, keeping in view the inevitable frequent changes in the office of the Magistrate and Judge and in order to provide a speedy trial the legislature has taken away the well-established right of the accused to claim a de novo trial and that of the court to so direct by express words of the amending statute of 1955. Considered in that perspective we are of the opinion that the case of Payare Lal case(Supra) which was decided when Section 350 was operating in the field without its amendment of 1955 has no relevance here."
In Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal, (2011) 9 SCC 638, at page 641 The Apex Court once again considered the provision under section 326CrPC with regard to summary trial and held;
"12. Section 326 is part of the general provisions as to inquiries and trials contained in Chapter XXIV of the Code. It is one of the important principles of criminal law that the Judge who hears and records the entire evidence must give judgment. Section 326 is an exception to the rule that only a person who has heard the evidence in the case is competent to decide whether the accused is innocent or guilty. The section is intended to meet the case of transfers of Magistrates from one place to another and to prevent the necessity of trying from the beginning all cases which may be part-heard at the time of such transfer. Section 326 empowers the succeeding Magistrate to pass sentence or to proceed with the case from the stage it was stopped by his preceding Magistrate. Under Section 326(1), 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 of a retrial.
13. In fact, Section 326 deals with part-heard cases, when one Magistrate who has partly heard the case is succeeded by another Magistrate either because the first Magistrate is transferred and is succeeded by another, or because the case is transferred from one Magistrate to another Magistrate. The rule mentioned in Section 326 is that the second Magistrate need not rehear the whole case and he can start from the stage the first Magistrate left it.
14. However, a bare perusal of sub-section (3) of Section 326 makes it more than evident that sub-section (1) which authorises the Magistrate who succeeds the Magistrate who had recorded the whole or any part of the evidence in a trial to act on the evidence so recorded by his predecessor, does not apply to summary trials. The prohibition contained in sub-section (3) of Section 326 of the Code is absolute and admits of no exception. Where a Magistrate is transferred from one station to another, his jurisdiction ceases in the former station when the transfer takes effect."
It was further observed In Nitinbhai Saevatilal Shah v. Manubhai Manjibhai Panchal, (2011) 9 SCC 638 in paragraph 19 the effect of introduction of section326 CrPC.
"19. The cardinal principal of law in criminal trial is that it is a right of an accused that his case should be decided by a Judge who has heard the whole of it. It is so stated by this Court in the decision in Pyare Lal v. State of Punjab (Supra) This principle was being rigorously applied prior to the introduction of Section 350 in the Code of Criminal Procedure, 1898. Section 326 of the new Code deals with what was intended to be dealt with by Section 350 of the old Code.
20. From the language of Section 326(3) of the Code, it is plain that the provisions of Sections 326(1) and 326(2) of the new Code are not applicable to summary trials. Therefore, except in regard to those cases which fall within the ambit of Section 326 of the Code, the Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He has got to try the case de novo. In this view of the matter, the High Court should have ordered de novo trial."
In view of the discussion made herein above the judgment of this Court in Punjab Singh's case (supra) and the judgment of Hon'ble Supreme Court in Pyare Lal's case (Supra) shall not extend any help to the present applicant.
In view of the above I do not find any merit in the transfer application and same is accordingly dismissed.
The trial Court is directed to conclude the trial, if not yet been concluded in terms of the order passed by Apex Court without any adjournment.
Order Date :- 04.12.2014 R.K.P.