Kerala High Court
P.Kanakarajan vs Vipin K.V on 3 September, 2013
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY, THE 3RD DAY OF SEPTEMBER 2013/12TH BHADRA, 1935
Crl.Rev.Pet.No. 908 of 2013 ()
-------------------------------
CRL.A 761/2012 of SPL.ADDL.SESSIONS COURT( MARADU CASES),
KOZHIKODE
CC 340/2012 of SPL.J.M.F.C.(MARADU CASES), KOZHIKODE
REVISION PETITIONER(S)/APPELLANT/ACCUSED:
----------------------------------------
P.KANAKARAJAN
S/O.CHOYIKUTTY P.O., WEST HILL, KOZHIKODE-673 005.
BY ADVS.SRI.P.V.KUNHIKRISHNAN
SRI.P.V.ANOOP
RESPONDENTS/RESPONDENT/COMPLAINANT/STATE:
----------------------------------------
1. VIPIN K.V., AGED 27 YEARS,
S/O.SADANANDAN, 38/409, KALLUVEETTIL HOUSE
WEST HILL P.O., KOZHIKODE-673 005.
2. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAUKLAM-682 031.
R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 03-09-2013, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
OKB.
C.R.
K.HARILAL, J.
---------------------------------------------
Crl.R.P. No.908 of 2013
---------------------------------------------
Dated this the 3rd day of September, 2013
O R D E R
Whether a specific order switching over the summary trial to a summons trial is required in a proceeding under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act'), when at the commencement of or in the course of a summary trial, it appears to the Magistrate that summary trial is undesirable? Can such switching over of the proceedings from one to another be made passively in silence? Whether the lack of such a specific order would vitiate the trial? These are the questions that arise for decision in this Revision Petition.
2. The revision petitioner is the accused in C.C.No.340/2012 on the files of the Special Judicial First Class Magistrate (Marad cases), Kozhikode. He was prosecuted for the offence punishable under Section 138 of Crl.R.P.908/13 :2:
the N.I.Act on a complaint filed by the 1st respondent. After trial, the learned Magistrate found the revision petitioner guilty of the said offence and convicted thereunder. He was sentenced to undergo simple imprisonment for two months and to pay a compensation of Rs.3 lakhs to the complainant under Section 357(3) of the Cr.P.C. In default, to undergo simple imprisonment for two months. Aggrieved by the conviction and sentence, though he had preferred Criminal Appeal No.761/2012 before the Court of Session, Kozhikode Division, the appellate court also confirmed the verdict of guilty and conviction, but modified the sentence. The substantive sentence of imprisonment was set aside. The direction to pay a compensation of Rs.3 lakhs was modified to pay a fine of Rs.3,10,000/- and in default, to undergo simple imprisonment for two months and if the fine amount is paid or realised, the same shall be given to the complainant as compensation under Section 357(1) (b) of the Cr.P.C. The concurrent findings of conviction and Crl.R.P.908/13 :3:
modified sentence are under challenge in this Revision Petition.
3. Though this Revision Petition has been filed on various grounds challenging the merits of the impugned judgment, the learned counsel for the revision petitioner mainly canvassed the point, challenging the maintainability of the proceedings of trial, caused by the procedural irregularity. Though notice had been served on the 1st respondent/complainant, he did not enter appearance.
4. Shri.P.V.Kunhikrishnan, the learned counsel for the revision petitioner drew my attention to sub-sections (1) and (3) of Section 326 of the Cr.P.C. and points out that initially the proceedings were commenced as a summary trial, in the Judicial First Class Magistrate's Court-IV, Kozhikode and after recording the plea, the case was transferred to the Special Judicial First Class Magistrate's Court (Marad Cases), Kozhikode. After the transferring of the case, the proceedings were again continued as Crl.R.P.908/13 :4:
summary trial and evidence recorded in such a way. Therefore, the subsequent proceedings are hit by sub- section (3) of Section 326 of the Cr.P.C. The learned counsel further drew my attention to the order sheet and pointed out that going by the order sheet, there is no specific order switching over the proceedings from summary trial to summons trial in compliance with the second proviso to Section 143 of the N.I.Act. Thus, the entire proceedings are vitiated by procedural irregularity and no conviction can be based on such a trial vitiated by procedural irregularity. The learned counsel for the revision petitioner placed reliance on the decision reported in Nitinbhai Saevatilal Shah and another Vs. Manubhai Manjibhai Panchal and another [2011 (9) SCC 638] and invited my attention to paragraphs 19 and 21 to 23, where it is concluded that such proceedings vitiated by procedural irregularity are void ab initio.
5. I have bestowed my anxious consideration to the Crl.R.P.908/13 :5:
arguments advanced by the learned counsel for the revision petitioner at the Bar. In view of the arguments, the question to be considered is whether a separate order converting the summary trial to summons trial is required for changing the summary trial to a summons trial, particularly, when the proceedings are initiated by one Judge or Magistrate and concluded by another Judge or Magistrate. Going by Section 326 of the Cr.P.C., it could be seen that the statutory mandate is that 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 Magistrate so succeeding may act on the evidence so recorded by his predecessor and partly recorded by himself. This is the general law governing the procedure permitting the exercise of jurisdiction in succession of a predecessor Magistrate by a successor Crl.R.P.908/13 :6:
Magistrate. But the general section is subject to sub-sections (2) and (3) of Section 326 of the Cr.P.C. Sub-section (3) mandates that nothing in this section applies to summary trial or cases in which proceedings have been stayed under Section 322 or in which the proceedings have been submitted to a superior Magistrate under Section 325. Therefore, it is clear that the general provision cannot be availed of in a summary trial.
6. Further, the learned counsel for the revision petitioner drew my attention to the second proviso to Section 143 of the N.I. Act. The second proviso mandates that, when, at the commencement of, or in the course of, a summary trial, if it appears to the Magistrate that the nature of case is such that the 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 Crl.R.P.908/13 :7:
witnesses who may have been examined and proceeded to hear or re-hear the case in the manner provided by the said Code. The point is that there must be a specific order indicating the switching over of summary trial to summons trial. Indisputably, the proceedings were commenced before the Judicial First Class Magistrate's Court-IV, Kozhikode and subsequently the case was transferred to the Special Judicial First Class Magistrate's Court, (Marad Cases), Kozhikode. If that be so, in the instant case, it is to be ascertained that whether there is any specific order switching over the proceedings from summary trial to summons trial. If there is a specific order recording the conversion of summary proceedings to summons proceedings, the trial is in order and can be in conformity with the second proviso to Section 143 of the N.I. Act. I have perused the order sheets of both the courts. Going by the order sheets of the courts, I find no such specific order recording the switching over of procedure from summary Crl.R.P.908/13 :8:
trial to summons trial. I may hasten to add that in a prosecution for offence under Section 138 of the N.I.Act, such a conversion of proceedings from one to another cannot be made passively in silence, when the special statute specifically requires to do otherwise. So, the next question to be considered is whether such an irregularity caused by the lack of specific order vitiates the trial. This question was discussed and answered by the Apex Court in Nitinbhai's case (cited supra). In the said decision, the Supreme Court held as follows:
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 herd the whole of it. It is so stated by this Court in the decision in Pyare Lal v. State of Punjab. 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.
Crl.R.P.908/13 :9:
21. The next question that arises is as to from what stage the learned Metropolitan Magistrate, Ahmedabad, should proceed with the trial de novo.
22. As it has been seen that Section 326 of the new Code is an exception to the cardinal principle of trial of criminal cases, it is crystal clear that if that principle is violated by a particular Judge or a Magistrate, he would be doing something not being empowered by law in that behalf. Therefore, Section 461 of the new Code would be applicable.
23. Section 461 of the new Code narrates the irregularities which vitiate proceedings. The relevant provision is clause (l). it reads as follows:
"461. Irregularities which vitiate proceedings- If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:
....................................
(l) tries an offender;
.................................... his proceedings shall be void."
A plain reading of this provision shows that the proceedings held by a Magistrate, to the extent Crl.R.P.908/13 :10:
that he is not empowered by law, would be void and void proceedings cannot be validated under Section 465 of the Code. This defect is not a mere irregularity and the conviction of the appellants cannot, even if sustainable on the evidence, be upheld under Section 465 of the Code.
Going by the said decision, it could be seen that when an incumbent Magistrate exercises jurisdiction not vested with him, such proceedings can be taken as an irregularity which vitiates the proceedings and the decision rendered in exercise of such proceedings would be void ab initio. It follows that, no conviction can be based upon the decision arrived at such proceedings. The learned counsel further points out that though in the instant case the plea alone is recorded, that also will come under the rigor of Section 326 because 'inquiry' is also included under the application of Section 326. Section 2(g) of the Cr.P.C. describes that "inquiry" means every inquiry other than a trial, conducted under this Code by a Magistrate or Court. Therefore, Crl.R.P.908/13 :11:
recording of plea also will come under the bar.
7. This point is further supported by the decision rendered by this Court in Kannan Vs. Narayana Swami [2012(4) KLT 737]. In the above decision, this Court held that, "What is required is only a primary satisfaction of the Magistrate that the nature of the case is such that a sentence for imprisonment for a term of one year may have to be passed, or, for any other reason it is undesirable to try the case summarily. Only requirement on arriving of such satisfaction to switch over to a different procedure provided under the Code from summary trial already proceeded is recording of an order thereof by the magistrate."
8. Going by the records of this case, I am satisfied that no such specific order recording switching over of summary trial to summons trial has been passed in this case. Needless to say, if that be so, the trial is void ab initio and no conviction can be based on the findings of such trial.
Crl.R.P.908/13 :12:
9. Consequently, I am inclined to set aside the impugned judgment and remit back the case to the trial court for fresh trial and I do so. The proposition, which I laid down above, is applicable in a proceeding under the N.I. Act only and this proposition cannot be made avail of any other summary proceedings for the other offences because no specific order is required under Section 260(2) of the Cr.P.C. unlike a specific order under Section 143 in a prosecution under Section 138 of the N.I. Act. The parties shall appear before the trial court on 10.10.2013.
This Criminal Revision Petition is disposed of as above.
(K.HARILAL, Judge) okb.