Bombay High Court
Pramod Radheshyam Agrawal And 11 Oths vs Ashok Shyamsunder Zinzunwala And Anr on 26 October, 2016
Equivalent citations: AIRONLINE 2018 BOM 141
1 apl131.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO. 131 OF 2011
1) Pramod Radheshyam Agrawal,
adult, occupation : Service,
resident of Shegaon, District
Buldhana.
2) Shivprasad Shriniwas Padiya,
Adult, occupation : Trade,
3) Vijaykumar Rajkumar Choudhari,
Adult, occupation : Trade,
4) Sagar Rameshwar Modi,
Adult, occupation : Trade,
5) Jagdish Madanlal Khetan,
Adult, occupation : Trade,
6) Jagdish Ratanlal Agrawal,
Adult, occupation : Trade,
7) Kishor Bhailal Ganatra,
Adult, occupation : Trade,
8) Rajendra Dipchand Badjatya,
Adult, occupation : Trade,
9) Sanjaykumar Pralhadrai Agrawal,
Adult, occupation : Trade,
10) Narendra Harnarayan Karnani,
Adult, occupation : Trade,
11) Sachin Subhash Bafna,
Adult, occupation : Trade/Professor,
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2 apl131.11
12) Bhagatsingh Bhaulal Rajput,
Adult, occupation : Trade/Professor,
Nos. 2 to 12 residents of Khamgaon,
District Buldhana. ... Applicants
- Versus -
1) Ashok Shyamsunder Zinzunwala,
aged 42 years, occupation : business,
r/o Khamgaon (Bhasara Galli),
Tahsil Khamgaon, District Buldhana.
2)
P.S.O., Khamgaon.
State of Maharashtra, through
... Respondents
-----------------
Shri A.C. Dharmadhikari, Advocate for applicants.
Shri V.S. Giramkar, Advocate for respondent no.1.
Shri A.V. Palshikar, Additional Public Prosecutor for respondent
no.2.
----------------
Date of reserving the judgment : 19/10/2016
Date of pronouncing the judgment : 26/10/2016
CORAM : KUM. INDIRA JAIN, J.
DATED : OCTOBER 26, 2016
ORAL JUDGMENT :
By this criminal application, applicants are challenging the order dated 11/1/2011 passed by the learned Judicial ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:56:34 ::: 3 apl131.11 Magistrate, First Class, Khamgaon below Exh. 154 and order dated 28/1/2011 below Exh. 163 in Summary Criminal Case No. 611/2008 and also order dated 18/2/2011 passed by the learned Ad hoc Additional Sessions Judge, Khamgaon in Criminal Revision No.15/2011 .
2) Facts giving rise to the application may be stated in nutshell as under :
Respondent no.1 filed a private complaint alleging therein that the applicants committed offences punishable under Sections 463, 464, 465, 468 and 471 read with Section 34 of the Indian Penal Code as they forged a document in Criminal Revision No.52/2006 pending before the Additional Sessions Judge, Khamgaon. The learned Judicial Magistrate, First Class issued process against the accused for the offences punishable under Sections 465 and 471 of the Indian Penal Code. Initially it was registered as Regular Criminal Case No.88/2007 and later re-numbered as Summary Criminal Case No.611/2008.
3) Accused appeared in pursuance to the process issued.
Substance of accusations was explained to them. Complainant ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:56:34 ::: 4 apl131.11 adduced his evidence. Statements of accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") were recorded. Accused examined three witnesses in support of their defence and one witness remained to be examined.
Thereafter, Presiding Officer of the Court was transferred and another Judicial Officer took over the charge. Complainant filed an application (Exh. 154) for de novo trial in view of change of the Presiding Officer. This application was allowed.
4) On 21/12/2010 accused moved an application (Exh. 163) for permanent exemption mainly on the ground that in view of the order of de novo trial, it will take considerable time to conclude the trial and since they are not disputing the identity, they may be exempted from personal appearance in the Court. Vide order dated 28/1/2011, trial Court rejected the application. Accused challenged the order in Criminal Revision No.15/2011. The learned Additional Sessions Judge, Khamgaon dismissed the revision on 18/2/2011.
Being aggrieved by the orders on Exhs. 154 and 163, applicants are invoking the jurisdiction of this Court under Section 482 of the Code.
5) It is the contention of the applicants that bar under ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:56:34 ::: 5 apl131.11 Section 326(3) of the Code would not be attracted as evidence of complainant and three witnesses examined on behalf of defence came to be elaborately recorded by the trial Court. It is submitted that the full scope to examine and cross-examine the witnesses was given and the procedure adopted by the trial Court indicates that substance in summary way was not recorded at the time of recording evidence, but the evidence was recorded in a regular course. In this background, applicants submit that the order passed on Exh. 154 is mechanically passed and gross error is committed as the case tried was not a summary trial, but as regular summons case.
6) Regarding order on Exh. 163, applicants state that in view of the order passed on Exh. 154, Court ordered de novo trial and presence of applicants was not essential before the Court as recording of evidence would have commenced from beginning.
Applicants state that they never evaded the trial and always cooperated in the proceedings. A grievance is made that without considering the fact that accused/applicants did not dispute the identity, the learned Magistrate rejected the application for permanent exemption.
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7) Heard Shri A.C. Dharmadhikari, learned Counsel for applicants, Shri V.S. Giramkar, learned Counsel for respondent no.1 and Shri A.V. Palshikar, learned Additional Public Prosecutor for respondent no.2 State.
8) Shri Dharmadhikari, learned Counsel for applicants, submits that the controversy in respect of de novo trial in such cases is covered by the decision of the Hon'ble Supreme Court in J.V. Baharuni and another vs. State of Gujarat and another {(2014) 10 SCC 494} and of this Court in Shivaji Sampat Jagtap vs. Rajan Hiralal Arora (2006 ALL MR (Cri) 2612). The learned Counsel would submit that the test to be adopted for conducting trial is whether only substance of evidence was recorded or whether complete depositions of the witnesses in examination-in-chief, cross-examination and re-examination were recorded. It is pointed out that evidence of complainant and three witnesses examined on behalf of defence in the present case would clearly indicate that the evidence was recorded in detail and in verbatim giving all the minute details and the opportunity of thorough cross-examination to the witnesses was given. According to learned Counsel for applicants, ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:56:34 ::: 7 apl131.11 in such a situation, bar under Section 326(3) of the Code would not be attracted as held by the Hon'ble Supreme Court and by this Court.
9) On permanent exemption of the accused under Section 205 of the Code, it is stated on behalf of applicants that the order of de novo trial was passed and, therefore, the trial was to commence from the beginning. The learned Counsel submits that accused did not dispute the identity and their presence was not at all necessary.
Considering the grounds raised in the application for permanent exemption, trial Court ought to have granted permanent exemption to the accused as it was open in law to secure their presence as and when required.
10) Per contra, Shri Giramkar, learned Counsel for respondent no.1, has raised a preliminary objection and submitted that application is not maintainable as there is mis-joiner of cause of actions. It is stated that the issues of de novo trial and permanent exemption were not inter-connected and the orders were independently passed on the separate applications. The learned Counsel submits that in the present case, trial was a summary ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:56:34 ::: 8 apl131.11 trial and not as a summons case. It is stated that substance of evidence came to be recorded by the trial Court, which would indicate that bar under Section 326(3) of the Code was attracted and the trial Court was right in passing the order of de novo trial.
So far as permanent exemption is concerned, it is pointed out that presence of accused was necessary as the particulars of offences were to be explained and evidence of witnesses was to be recorded. The learned Counsel states that accused did not make out a case for interference in the concurrent findings recorded by the trial Court and revisional Court and seeks dismissal of the present application.
11) With the assistance of the learned Counsel for the parties, this Court has perused the evidence of complainant and three witnesses examined on behalf of defence. It is apparent that examination-in-chief, cross-examination and re-examination of the witnesses came to be recorded. Number of documents came to be exhibited in the evidence of witnesses. The evidence of complainant runs into eight pages. In his examination-in-chief, around eleven documents came to be exhibited. He was cross-
examined in detail. It further appears from the record of the trial ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:56:34 ::: 9 apl131.11 Court that complainant also examined Police Constable Dilip Singh Rajput and this witness was also cross-examined by the defence.
Similarly, evidence of three witnesses examined by the defence was elaborately recorded in verbatim giving full scope to the complainant to cross-examine them. The Hon'ble Supreme Court in the case of J.V. Baharuni and another (supra) issued certain directions in the matter of determining whether it is a summary trial or summons case trial in a particular case. Direction (vi) in paragraph 60.6 issued by the Hon'ble Supreme Court is as under :
"60.6. While examining the nature of the trial conducted by the trial Court for the purpose of determining whether it was summary trial or summons trial, the primary and predominant test to be adopted by the appellate Court should be whether it was only the substance of the evidence that was recorded or whether the complete record of the deposition of the witness in their chief- examination, cross-examination and re-examination in verbatim was faithfully placed on record. The appellate Court has to go through each and every minute detail of the trial Court record and then examine the same independently and thoroughly to reach at a just and reasonable conclusion."
12) In similar set of facts, this Court in Shivaji Sampat Jagtap's case referred above observed in paragraph 20 as under :
"In other words, a case, which is triable as summarily, and in which the record of the proceedings has been prepared in accordance with the provisions of Sections 263 and 264 of the Code could be stated to have been ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:56:34 :::
10 apl131.11 tried summarily for the purpose of Section 326(3) and in that case the evidence recorded by one Magistrate cannot be read in evidence by succeeding Magistrate.
The succeeding Magistrate, however, in a case, where the procedure contemplated under Sections 263 and 264 of the Code in particular has not been followed, he need not hold a trial de novo. In short, if no record as per Sections 263 and 264 has been or is being maintained by the Magistrate and the case has been or is being tried as a regular summons case and not tried in a summary way as contemplated under Sections 262 to 265 of the Code, such case shall not be considered as tried in summary way, though triable summarily as provided for under sub-section (1) of Section 143 of the Act, so as to attract the provisions of Section 326 of the Code. Therefore, the evidence recorded by one Magistrate in such a case may be legally read in evidence by his successor and no de novo trial shall be necessary."
13) In the case on hand, as is evident from depositions of complainant and the witnesses examined by the defence, the full-fledged evidence was recorded. Number of documents were exhibited. The evidence was not in the form indicated in Section 264 of the Code, i.e. in the form of substance of evidence. This clearly shows that evidence recorded in the present case was not in a summary way and it was not a summary trial, but the case was tried as regular summons case. The impugned order passed below Exh. 154 is thus contrary to the directions issued by the Hon'ble Supreme Court and clear and unambiguous provisions of the Code.
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14) This takes this Court to the preliminary objection raised by respondent no.1 regarding joinder of two prayers in the application
(i) regarding de novo trial and (ii) regarding permanent exemption. It is pertinent to note that application (Exh. 163) was submitted by the accused on the ground that the Court has ordered de novo trial and the trial was to commence since its inception. Since application for permanent exemption (Exh. 163) was based on the order of the learned Magistrate regarding de novo trial, this Court does not find that clubbing of both the prayers would hit the maintainability of application in any way. Even otherwise, since the order of de novo trial needs to be quashed and set aside in view of the observations made hereinabove, the point in respect of permanent exemption would not survive. Needless to state that accused may have liberty to move in future as and when occasion so arises.
15) In the light of the above circumstances, criminal application deserves to be partly allowed. Hence, the following order :
(i) Criminal application is partly allowed.
(ii) The impugned order dated 11/1/2011 passed by the learned Magistrate, First Class, Khamgaon below Exh.154 in ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:56:34 :::
12 apl131.11 Summary Criminal Case No.611/2008 is quashed and set aside.
(iii) The trial Court is directed to proceed in accordance with the law from the stage at which application (Exh. 154) was filed by the complainant and decide the matter as expeditiously as possible and in any case, within six months.
(iv) The cause to challenge the order dated 28/01/2011 below Exh. 163 in Summary Criminal Case No.611/2008 passed by the learned Judicial Magistrate, First Class, Khamgaon does not survive in view of (ii) above, hence, application to that extent stands disposed of.
(v) Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE khj ::: Uploaded on - 27/10/2016 ::: Downloaded on - 28/10/2016 00:56:34 :::