Bombay High Court
Samadhan S/O Tukaram Thakre vs State Of Maharashtra on 27 November, 2009
Author: S. S. Shinde
Bench: S. S. Shinde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Criminal Application No. 3540 of 2007
Samadhan s/o Tukaram Thakre,
aged 54 years,
Occupation - Agriculturist,
R/o Jalgaon Jamod, Tq. Jalgaon Jamod,
District - Buldhanha. .. APPLICANT
.. Versus ..
State of Maharashtra,
through P.S.O., Jalgaon Jamod. .. NON-APPLICANT
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Mr. A.V. Bhide, Advocate for the applicant,
Mr. V.A. Thakare, APP for the non-applicant.
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CORAM:- S. S. SHINDE, J.
DATE OF RESERVING THE JUDGMENT : 18-11-2009
DATE OF PRONOUNCING THE JUDGMENT : 27-11-2009
JUDGMENT
1. This application is filed challenging the judgment and order dated 17-10-2007 passed by the Additional Sessions Judge, Khamgaon in Criminal Case No.172/2008.
2. Brief facts of the case are as under :-
Under the Essential Commodities Act, 1955 (for brevity 'E.C.Act') one Special Case No.1/94 was registered in the ::: Downloaded on - 09/06/2013 15:21:15 ::: 2 Special Court i.e. the Court of Additional Sessions Judge, Khamgaon. The then Special Judge framed and explained charges vide Exh.41 to all the accused persons for the offences punishable under Sections 409, 411, 414, 418 read with section 34 of the Indian Penal Code and Section 3 read with Section 7 of the E.C. Act. The said charges were amended / altered vide Exh.45 on 30-11-1996. The charge punishable under Section 409 of the Indian Penal Code and Section 3 read with 7 of the E.C. Act only against the accused No.1, under Section 411 of the Indian Penal Code against the accused Nos. 2 and 3, under Section 414 of the Indian Penal Code against the accused Nos. 2 to 7 and the offence under Section 418 of the Indian Penal Code against all the accused were framed.
3. The Special Judge then embarked on recording evidence on 29-7-1997 in all 15 witnesses were examined by the prosecution and the last one was examined on 13-7-1998. Vide Pursis Exh. 126 the prosecution has closed its side on 27-7-1998. On 1-8-1998 the then Special Judge passed an order below Exh.1 to the effect that the case was posted for statement of accused. The learned Special Judge found that charge framed originally and explained to the accused for the offence under Section 3 of the E.C. Act, does not specify the ::: Downloaded on - 09/06/2013 15:21:15 ::: 3 contravention of any order, enactment or ordinance promulgated by the State Government. So It is not desirable to proceed with the trial as a Special Court. The learned APP was, therefore, requested to enlighten the Court as to which ordinance, order or enactment of the State Government was contravened to invoke the provisions of Section 3r/w Section 7 of the E.C. Act. With this order the recording of statement of accused under Section 313 of the Code of Criminal Procedure was postponed.
4. The learned APP vide Pursis at Exh.128 dated 25-9-1998 submitted that no contravention of any order to attract the offence under Section 3 read with Section 7 of E.C. Act is made out. In view of the said pursis, the Special Judge observed that it would not be desirable to proceed with the trial and rest of the offences were triable by the Judicial Magistrate First Class.
The Special Judge addressed letter to the District Judge, Buldhana for suitable directions. The District Judge, Buldhana issued an administrative order dated 8-10-1998 withdrawn the file from the Additional Sessions Judge, Khamgaon and transferred to the Judicial Magistrate First Class, Jalgaon Jamod for disposal according to law with an immediate effect.
5. The accused persons were directed by the Judicial ::: Downloaded on - 09/06/2013 15:21:15 ::: 4 Magistrate Fist Class, Jalgaon Jamod to appear before him on 2-11-1999. The Judicial Magistrate First Class, Jalgaon Jamod registered the said case as Regular Criminal Case No.172/98 for the offence under Sections 409, 411, 414 and 418 of the Indian Penal Code. On 4-2-2005 the accused persons filed pursis vide Exh.147 to the effect that they would not have any objection if the evidence recorded by the Special Judge, if read for the purpose of judgment. In the wake of this pursis the Judicial Magistrate First Class, Jalgaon Jamod has not recorded the evidence but by recording the statement of accused persons under Section 313 of the Criminal Procedure Code. Those statements are at Exh.149 and the case was posted for arguments. Both the parties submitted their written arguments at Exh.67 and Exh. 160.
6. Judicial Magistrate First Class, Jalgaon Jamod ought to have tried the case as a "warrant trial" by following the procedure therefor. However, the Judicial Magistrate First Class, Jalgaon Jamod failed to adopt that procedure, but adopted the evidence recorded by the Special Court, which was recorded in a summary manner. The Judicial Magistrate First Class, Jalgaon Jamod by order dated 22th June, 2006 convicted the accused No.1 Samadhan Tukaram Thakre under Section ::: Downloaded on - 09/06/2013 15:21:15 ::: 5 248(ii) of the Criminal Procedure Code for the offence punishable under Section 409 of the Indian Penal Code. He is sentenced to suffer R.I. for nine months and to pay a fine of Rs.
3,000/- (Rupees Three Thousand Only) and in default of payment of fine to suffer S.I. for two months. However, he was acquitted for the offence punishable under Sections 411, 414, 417 of the Indian Penal Code and under Section 3(7) of the E.C. Act. However, the Magistrate acquitted the accused Nos. 2 to 7 for the offence punishable under Sections 409, 411, 414 and 418 r/w 34 of the Indian Penal Code and under Section 3(7) of the E.C. Act and the bail bonds of accused Nos. 2 to 7 were cancelled.
7. The accused No.1 Samadhan Thakre aggrieved by the judgment and order of the Judicial Magistrate First Class, Jalgaon Jamod filed the Criminal Appeal No.15/2006. In the said appeal the Additional Sessions Judge, Khamgaon came to the conclusion that the proceedings before the Judicial Magistrate First Class, Jalgaon Jamod stands vitiated since the Judicial Magistrate First Class, Jalgaon Jamod adopted the evidence recorded by the Special Court, which was recorded in a summary manner. Therefore, the Sessions Court came to the conclusion that the entire proceedings before the Judicial ::: Downloaded on - 09/06/2013 15:21:15 ::: 6 Magistrate First Class, Jalgaon Jamod was vitiated. Therefore, the Sessions Court quashed and set aside the judgment and order of the Judicial Magistrate First Class, Jalgaon Jamod and case was remanded to the trial Court for fresh trial. The applicant herein being aggrieved about remand of the case by the Sessions Court filed this Criminal application.
8. The learned Advocate appearing for the applicant submitted that the Special Court, Khamgaon had no jurisdiction to record the evidence, on the basis of which other accused were acquitted and the appellant was convicted. The manner in which the criminal case No.172/98 was tried, amounted to abuse the process of law, hence the trial was vitiated. It is further submitted that the Judicial Magistrate First Class, Jalgaon Jamod was not correct to consider the evidence recorded by the Special Court in a summary manner and convicting the applicant. According to the learned Advocate, the Judicial Magistrate First Class, Jalgaon Jamod only considered the evidence recorded by the Special Court in a summary manner and passed an order of conviction of the applicant. According to the learned Advocate the trial for the offences under Sections 407, 411, 414, 418 is a warrant trial.
As per Section 461(m) of the Criminal Procedure Code; if any ::: Downloaded on - 09/06/2013 15:21:15 ::: 7 Magistrate not being empowered by any law in this behalf, does any of the following things namely ------ (m) ----- tries an offence summarily, his proceedings shall be void." Therefore, the learned Advocate submits that the trial was vitiated and the entire proceedings before the Judicial Magistrate First Class, Jalgaon Jamod were void.
9. The learned Advocate appearing for the applicant further submitted that on merits also at the relevant time the applicant was not working as Go-down Keeper and somebody else was responsible for the alleged act. The learned Advocate further submitted that if the other accused were acquitted on the basis of evidence recorded in summary manner, the appellate Court ought to have acquitted the accused as admittedly. The procedure of warrant trial was not followed by the Judicial Magistrate First Class, Jalgaon Jamod. It is further submitted that the trial Judge has decided the case without recording the evidence. The trial was vitiated and the applicant was liable to be acquitted. It is further submitted that the case was commenced in the year 1988 and 18 years had already lapsed and in view of the said fact as the trial was vitiated the applicant was liable to be acquitted. It is further submitted that the applicant should have been discharged due to inordinate ::: Downloaded on - 09/06/2013 15:21:15 ::: 8 delay in trial. The learned Advocate further submitted that if the other six accused are already acquitted by the trial Judge, whether the Sessions Judge is justified in remanding the case of the applicant alone for the trial before the Judicial Magistrate First Class. Therefore, the learned Advocate submits that this application may be allowed.
10. The learned Advocate in support of his contention placed reliance on the reported judgment of Andhra Pradesh High Court in case of Chandana Surya Rao .v. State reported in 1989 Cri.L.J.2077. On the basis of said judgment learned Advocate would submit that as per sub-section 3 of Section 326 of the Criminal Procedure Code, "whenever a summary trial case is dealt with by a Judge or a Magistrate, who takes cognizance of the offence and records evidence, the judgment must be pronounced by the same Judge or Magistrate only;
otherwise; the same will vitiate.' The learned Advocate also invited my attention to the said para of the said judgment and submitted that the application deserves to be allowed.
11. The learned APP appearing for the State vehemently opposed the application and submitted that the Sessions Court has rightly remanded the case to the trial Court for fresh trial.
::: Downloaded on - 09/06/2013 15:21:15 ::: 9According to the learned APP offence in question is committed by the applicant herein, merely on technicalities it cannot be said that trial itself against the applicant should not be proceeded further. Therefore, learned APP submits that this Court may not exercise its jurisdiction under Section 482 of the Criminal Procedure Code.
12. I have carefully perused the contents of the application, annexures thereto, judgment and order passed by the Judicial Magistrate First Class, Jalgaon Jamod as well as the Sessions Court, it would not be out of place to mention that the other six accused persons and present applicant filed pursis before the Judicial Magistrate First Class, Jalgaon Jamod and stated that, the evidence itself recorded by the Special Court should be taken into consideration and no fresh evidence may be recorded. It means, the applicant along with six accused persons by way of filing pursis, prevented the Judicial Magistrate First Class, Jalgaon Jamod from recording evidence.
Therefore, the Judicial Magistrate First Class, Jalgaon Jamod relying on the same evidence or statements which were recorded by the Special Court convicted the present applicant and acquitted other six accused.
::: Downloaded on - 09/06/2013 15:21:15 ::: 1013. The Sessions Court has rightly held that the Judicial Magistrate First Class, Jalgaon Jamod should have tried the case as a "warrant trial" by following the procedure prescribed under the Criminal Procedure Code and should not have relied on the evidence recorded by the Special Court which was recorded in a summary manner. The Sessions Court, therefore, quashed and set aside the judgment and order passed by the Judicial Magistrate First Class, Jalgaon Jamod and matter is remanded back to the Judicial Magistrate First Class, Jalgaon Jamod for fresh trial. The submission which is canvassed by the Advocate for the applicant, in short, is that the Sessions Court should have acquitted the applicant without remanding the matter back to the Judicial Magistrate First Class, Jalgaon Jamod for fresh trial. It means the applicant should be acquitted even without trial. The said submission is required to be rejected at threshold. The Sessions Court while appreciating the contention of the applicant that he should be acquitted, has considered the provisions of Section 461 (m) of Criminal Procedure Code. In paragraph 14 of its judgment, the Sessions Court has observed that, "Section 461 (m) of Criminal Procedure Code provides that if any Magistrate not being empowered by Law in this behalf, tries an offender summarily, the proceedings shall be void, or ::: Downloaded on - 09/06/2013 15:21:15 ::: 11 proceeding in the concerned case stands vitiated." The learned Sessions Judge in Paragraph 15 has considered the effect of proceeding not following the procedure by the Judicial Magistrate First Class, Jalgaon Jamod, which is meant for "warrant trial". The learned Additional Sessions Judge has recorded that, "merely for irregularity in proceeding, the real culprit should not go unpunished." The Sessions Court has further observed that "it is worth mentioning the accused has misled the Court by filing the pursis at Exh.147 and allowing thereby the Court to proceed ahead on the basis of evidence recorded by the Special Court. So the act of filing the pursis and then raising objection as to irregularity of proceedings is sufficient to gather their ill intention of taking disadvantage by misleading the Court."
14. Therefore, in my considered view, the paragraphs 14 and 15 from the Judgment of the Sessions Court on appreciation of relevant provisions and facts of the case is complete answer to the point raised by the applicant. Therefore, the findings recorded by the Sessions Court, more particularly in paragraphs 14 an 15 needs no interference. In a normal course no person can be acquitted without trial. Therefore, the application is devoid of any merits. Rule is discharged. Interim stay to the ::: Downloaded on - 09/06/2013 15:21:15 ::: 12 proceedings in the lower Court is vacated. The application stands dismissed.
JUDGE adgokar ::: Downloaded on - 09/06/2013 15:21:15 :::