Ushmaben Dineshbhai Gohel vs State Of Gujarat & on 4 September, 2015

[Cites 15, Cited by 1]

Gujarat High Court

Ushmaben Dineshbhai Gohel vs State Of Gujarat & on 4 September, 2015

HC-NIC Page 1 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT 1 By this application under Section 482 of the Code of Criminal, 1973, the applicant - the original accused calls in question the legality and validity of the order dated 3rd October, 2012 passed by the learned Metropolitan Magistrate (Negotiable Instruments Act), Court No.30, Ahmedabad in the Criminal Case No.6735 of 2008, by which the learned Judge took the view that the evidence recorded in summary case by a predecessor Court, cannot be used for contradiction before the successor Court. To put it in other words, the learned Judge took the view that whenever the successor Court orders a de novo trial, the statements of the complainant recorded by the predecessor Court cannot be used for contradicting the complainant or his witnesses, if any. The deposition of the complainant recorded by the predecessor Court becomes inadmissible or nonexistent on account of the de novo trial. 2 Since a pure question of law falls for my consideration, I need not go much into the facts of the case. However, few basic facts may be stated thus:

2.1 The respondent No.2 lodged a private complaint in the Court of the learned Metropolitan Magistrate (Negotiable Instruments Act), Court No.30 at Ahmedabad against the applicant herein for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'the Act'). The complaint came to be registered as the Criminal Page 2 of 21 HC-NIC Page 2 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT Case No.6735 of 2008. It appears from the materials on record that the ExaminationinChief and the Crossexamination of the complainant were concluded. Before the trial could be completed with judgment, the Supreme Court delivered a judgment in the case of Nitinbhai Sevantilal Shah and another v. Manubhai Manjibhai Panchal and another reported in AIR 2011 Supreme Court 3076 taking the view that in view of the provisions of the Section 326(3) of the Code, when a case is tried as a summary case, a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. The Supreme Court took the view that Clause 3 of Section 326 of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, and therefore, in such circumstances, there should be a de novo trial. 3 Relying on the aforenoted decision of the Supreme Court, the complainant i.e. the respondent No.2 gave an application dated 21st December, 2011 before the trial Court that the case should be conducted de novo.

4 The learned Metropolitan Magistrate vide order dated 30th April, 2012 allowed the application of the complainant preferred under Section 326 of the Code and ordered a de novo trial.

5 It appears that the complainant once again entered the witness Page 3 of 21 HC-NIC Page 3 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT box. Her ExaminationinChief was completed. An objection was raised thereafter on behalf of the complainant to the very first question put to the complainant in her crossexamination.

6 The first question put by the Defence Counsel to the complainant in her crossexamination was that in the past, her deposition was recorded. The counsel appearing for the complainant raised an objection to such a question being put to the complainant on the ground that since the trial was being conducted de novo, the evidence recorded earlier by the predecessor Court has to be ignored completely and no question relating to such deposition recorded earlier can be put to the complainant.

7 It appears that the trial Court upheld the objection raised on behalf of the complainant on the ground that in a de novo trial, the successor Judge cannot act on the evidence so recorded by his predecessor, and therefore, no question relating to the earlier deposition can be put to the complainant.

8 Being dissatisfied with such a view taken by the trial Court, the accused has come up with this application.

9 Mr. Ekant Ahuja, the learned advocate appearing for the applicant

- accused vehemently submitted that the trial Court committed a serious Page 4 of 21 HC-NIC Page 4 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT error in upholding the objection raised by the complainant as regards the permissibility of the first question put to the complainant in her cross examination. He submitted that any statement made by the complainant in her earlier deposition recorded by the predecessor Court would constitute "previous statement" and such previous statement could be used for the purpose of contradicting the complainant. 10 He submitted that the decision of the Supreme Court in the case of Nitinbhai Shah (supra) has been thoroughly misinterpreted and such misinterpretation has resulted in a serious miscarriage of justice. 11 He submitted that what is prohibited under Section 326 (3) of the Code is the consideration of the evidence by the successor Judge recorded by his predecessor. According to Mr. Ahuja, Section 326 of the Code has nothing to do with the right of the accused to contradict the complainant with her previous statement made in the deposition recorded by the predecessor Judge.

12 He submitted that as a matter of fact, the complainant was not even sought to be contradicted with any of her previous statements made in her earlier depositions recorded by the predecessor Judge and the only question put to the complainant was the fact that in the past, her evidence was recorded. Mr. Ahuja, however, submitted that the Defence Counsel did intend to contract the complainant with her Page 5 of 21 HC-NIC Page 5 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT previous statements, but before it could be done, the objection was raised by the counsel appearing for the complainant and such objection was wrongly upheld.

13 He submitted that any statement made by the complainant in her previous deposition recorded by the predecessor Judge would constitute "previous statements" within the meaning of Section 145 of the Evidence Act.

14 In such circumstances, referred to above, Mr. Ahuja submitted that this application deserves to be allowed and the order passed by the trial Judge may be quashed.

15 On the other hand, this application has been vehemently opposed by Mr. D.K. Puj, the learned counsel appearing for the respondent No.2 -

the original complainant. He submitted that no error not to speak of any error of law could be said to have been committed by the learned Judge in passing the impugned order. Mr. Puj submitted that the objection raised on behalf of the complainant was rightly upheld by the trial Court keeping in mind the provisions of Section 326 of the Code and the decision of the Supreme Court in the case of Nitinbhai Shah (supra). 16 He submitted that any statement made by the complainant in her previous deposition recorded by the predecessor Judge would not Page 6 of 21 HC-NIC Page 6 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT constitution "previous statements" within the meaning of Section 145 of the Evidence Act. He submitted that the words "previous statement" in Section 145 of the Evidence Act means only the statement made by a person before the police and recorded under Section 162 of the Code of Criminal Procedure, 1973. In short, according to Mr. Puj, Section 145 of the Evidence Act could be brought into play only for the purpose of contradicting a witness with his statement made before the police and recorded under Section 162 of the Code.

17 According to Mr. Puj, since a de novo trial was ordered, whatever was done in the past by the predecessor Judge has to be ignored in toto. 18 In such circumstances, referred to above, Mr. Puj submitted that there being no merit in this application, the same may be rejected. 19 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the trial Court committed any error in passing the impugned order.

20 The question of law which falls for my determination as such is very short and simple. However, taking into consideration the importance of the same keeping in mind the daytoday functioning of the Court of Magistrate, I propose to go a little deep into the same. Page 7 of 21 HC-NIC Page 7 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT 21 I deem it necessary 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 my purpose, reads 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 resummon the witnesses and recommence the inquiry or trial.

Provided as follows:

(a) 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." 21.1 In interpreting the words "ceases to exercise jurisdiction therein" in the above quoted Subsection (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 Page 8 of 21 HC-NIC Page 8 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT post but other High Courts held that the word "succeed" should not be construed in the narrower sense.

21.2 The legislature thought it necessary to add the following Subsection to Section 350(1) by Section 4 of Act XVIII of 1923, to put the issue beyond any pale of controversy.

21.3 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 Subsection (1).

21.4 The next legislative change in Section 350 of the Code of 1898 was brought about by Act 26 of 1955. By that, in Subsection (1) of the Section for the words "or he may resummon 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 resummon such witnesses and after such further examination, crossexamination and re examination, if any, as he may permit, the witness shall be discharged. 21.5 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 the Criminal Procedure Code (Amendment) Act, 1978 Page 9 of 21 HC-NIC Page 9 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT the section was amended to vest the power and discretion exercisable thereunder by a Magistrate to a Judge also. With the amendments detailed above Section 326 read, at the time the trial in question took place, and still reads as follows:

"(1) Whenever any Judge or 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 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 the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, he may resummon any such witness, and after such further examination, crossexamination and reexamination, 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 Subsection (1). (3) X X X"

21.6 From a comparative reading of subsection (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 Page 10 of 21 HC-NIC Page 10 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT remains. But so far as the other option is concerned, while earlier he could resummon the witness and recommence the inquiry or trial which necessarily meant a de novo trial he can now only resummon a witness who has already been examined for further examination and discharge him after such further examination crossexamination and reexamination 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 the 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.

22 In the case of Nitinbhai Shah (supra), the complainant examined himself along with other witnesses in support of his case and produced documentary evidence. The accused, however, did not lead any defence evidence but in his examination Under section 313 Code of Criminal Procedure, the accused stated that his signature was obtained on the blank paper by kidnapping him, written something on it and filed a false complaint against him. After recording evidence, the Metropolitan Magistrate came to be transferred. Therefore, he ceased to exercise Page 11 of 21 HC-NIC Page 11 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT jurisdiction. He was succeeded by another Magistrate before whom both parties, i.e. the complainant as well as the accused, filed a memo declaring that the parties had no jurisdiction to proceed with the matter on the basis of evidence recorded by the predecessor Magistrate in terms of Section 326, Code of Criminal Procedure and on that basis, learned Magistrate considered the evidence led by the complainant and passed judgment convicting the Appellants Under Section 138 of the N.I. Act and sentenced them to suffer simple imprisonment for three months with fine of Rs. 3,000/.Aggrieved by the said order, the accused preferred Criminal Appeal before the Sessions Judge at Ahmedabad who affirmed the conviction. However, there was some modification in the sentence. Dissatisfied with the judgment of the first appellate Court, the accused moved Gujarat High Court by way of a Revision. The Gujarat High Court maintained the conviction Under Section 138 of the N.I. Act, but set aside the final order of sentence imposed upon the accused and remanded the matter to the learned Magistrate for passing appropriate order on sentence and compensation. Aggrieved by the said order, appeal came before this Court.

23 Dealing with the said appeal, the Supreme Court, while relying on the provisions of Section 326 of the Code, observed thus:

"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 Page 12 of 21 HC-NIC Page 12 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT 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 partheard 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 topped 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 partheard 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 anther, 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 Subsection (3) of Section 326 makes it more than evidence that Subsection (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 Subsection (3) of Section 326 of the Code is absolute and admits of no exception.

Where as Magistrate is transferred from one station to another, his jurisdiction ceases in the former station when the transfer takes effect.

15. Provision for summary trials is made in Chapter XXI of the Code. Section 260 of the Code confers power upon any Chief Judicial Magistrate or any Metropolitan Magistrate or any Magistrate of the First Class specially empowered in this behalf by the High Court to try in a summary way all or any of the offences enumerated therein. Section 262 lays down the procedure for summary trial and Subsection (1) thereof inter alia prescribes that in summary trials the procedure specified in the Code for the trial of summons case shall be followed subject to the condition that no sentence of imprisonment for a term exceeding three months is passed in case of any conviction under the chapter.

16. The manner in which the record in summary trials is to be maintained is provided in Section 263 of the Code. Section 264 mentions that:

264. Judgments in cases tried summarily. In every case tried summarily in which the accused does not plead guilty, the Page 13 of 21 HC-NIC Page 13 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding.

Thus, the Magistrate is not expected to record full evidence which he would have been, otherwise required to record a regular trial and his judgment should also contain a brief statement of the reasons for the finding and not elaborate the reasons which otherwise he would have been required to record in regular trials.

17. The mandatory language in which Section 326(3) is couched, leaves no manner of doubt that when a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. In summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. The reason why the provisions of Subsections (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only the substance of evidence has to be recorded. The court does not record the entire statement of witnesses. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence only on the basis of evidence recorded by his predecessor. Section 326(3) of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if the succeeding, Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice.

24 Further considering the joint memo filed by the parties, it was held by the Supreme Court that "it is well settled that no amount of consent by the parties can confer jurisdiction where there exists none, on a court of law nor can they divest a court of jurisdiction which it possess under the law." 25 The Supreme Court further held :

"19. The cardinal principle 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 AIR 1962 SC 690. This principle was being rigorously Page 14 of 21 HC-NIC Page 14 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT 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 falls 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. ...

22. As it has been seen that section 326 of the new Code is an exception to the cardinal principle of trial criminal cases, it is crystal clear that if that principle is violated by a particular Judge or a Magistrate, he wold 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 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. ...

25. This is not a case of irregularity but want of competency. Apart from Sections 326(10 and 326(2) which are not applicable to the present case in view of Section 326(3), the Code does not Page 15 of 21 HC-NIC Page 15 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT conceive of such a trial. Therefore, Section 465 of the Code has no application. It cannot be called I aid to make what was incompetent, competent. There has been no proper trial of the case and there should be one."

26 It appears that in Nitinbhai Shah (supra), the entire case was tried "summarily", and the Magistrate who issued process, was transferred after recording the evidence. The succeeding Magistrate delivered the judgment on the basis of the memo filed by the parties declaring that they had no objection to proceed with the matter on the basis of evidence recorded by his predecessor. In such circumstances, the Supreme Court remanded the matter to the trial Court for de novo opining that no amount of consent by the parties can confer jurisdiction on a Court of law, where there exists none, nor by them divesting a Court of jurisdiction which it possessed under the law. 27 The decision in the case of Nitinbhai Shah (supra) was later on considered and interpreted in the case of J.V. Baharuni v. State of Gujarat reported in 2014 (10) SCC 494. The Supreme Court explaining the dictum laid down in Nitinbhai Shah (supra) observed as under:

"37. A case Under Section 138 of the N.I. Act, which requires to be tried in a summary way as contemplated Under Section 143 of the Act, when in fact, was tried as regular summons case it would not come within the purview of Section 326(3) of the Code. In other words, if the case in substance was not tried in a summary way, though was triable summarily, and was tried as a summons case, it need not be heard de novo and the succeeding Magistrate can follow the procedure contemplated Under Section 326(1) of the Code.

Page 16 of 21 HC-NIC Page 16 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT

38. But where even in a case that can be tried summarily, the Court records the evidence elaborately and in verbatim and defence was given full scope to crossexamine, such procedure adopted is indicative that it was not summary procedure and therefore, succeeding Magistrate can rely upon the evidence on record and de novo inquiry need not be conducted.

28 The Supreme Court further held in para 58 as under:

"58. A de novo trial should be the last resort and that too only when such a course becomes so disparately indispensable. It should be limited to the extreme exigency to avert "a failure of justice". Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate Court has got the plenary powers to revaluate and reappraise the evidence and to take additional evidence on record or to direct such additional evidence to be collected by the trial Court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings by bringing down all the persons to the Court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes imperative for the purpose of averting "failure of justice". The superior Court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are persons who once took all the trouble to reach the Court and deposed their versions in the very same case. The reenactment of the whole labour might give the impression to the litigant and the common man that law is more people but for the process of justice dispensation."

29 Thus, the Supreme Court in the subsequent decision in the case of J.V. Baharuni (supra) has made it very clear that remitting the matter for a de novo trial should be exercised as a last resort and should be used sparingly when there is a gross miscarriage of justice in light of the illegality, irregularity in competency or any other defect which cannot be cured at an appellate stage. The Appellate Court should also very consciously exercise the discretion judiciously while remanding the matter for de novo trial.

Page 17 of 21 HC-NIC Page 17 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT 30 Neither in the case of Nitinbhai Shah (supra) nor in the case of J.V. Baharuni (supra), the Supreme Court had the occasion to examine the issue whether the evidence recorded by a predecessor Court, can be used for contradiction before the successor Court. 31 In my view, what is prohibited under Section 326(3) is consideration of the evidence recorded by the predecessor Court. To put in other words, when a case is tried as a summary case, a Magistrate, who succeed the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. This, however, should not be construed as whenever the successor Court orders a de novo trial, the statement of the complaint and his witnesses recorded by the predecessor Court cannot be used for contradicting the complainant and his witnesses. Their previous statements do not become inadmissible or nonexistent on account of the de novo trial. 32 I am of the view that the statements of the complainant or the witnesses recorded by the predecessor Court are former statements of the complainant and the witnesses who are subsequently examined after the de novo trial, though in the same proceedings. This statement can be used for contradiction under Section 145 of the Evidence Act. There is no logic in the contention that because of a de novo trial, such statement must be treated as if nonexistent or inadmissible. Page 18 of 21 HC-NIC Page 18 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT 33 Under Section 145 of the Evidence, a witness may be cross examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question, without such writing being shown to him or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing, can be proved, be called to those parts of it which are to be used for the purpose of contradicting the matter.

34 My view is fortified by the following decisions:

34.1 In the case of Emperor v. Pranshankar Shambhuram Raval and another reported in AIR (37) 1950 Bombay 14, a Division Bench observed as under:

"As therefore the whole evidence of a witness who is resummoned is to be recorded again, his previous deposition before another Magistrate cannot be treated as substantive evidence in the case, although it may used for contradicting any fresh evidence given by him under S. 145, Evidence Act."

34.2 In the case of Tahsildar Singh v. State of U.P. reported in AIR 1959 SC 1012 at page 1023, their Lordships observed :

"The record of a statement, however perfunctory, is assumed to give a sufficient guarantee to the correctness of the statement made, but if words not recorded are brought in by some fiction, the object of the section would be defeated."

34.3 In Emperor v. Najibuddin, AIR 1933 Pat 589 a Bench of Page 19 of 21 HC-NIC Page 19 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT the Patna High Court said:

"A statement to an investigating officer can be deemed to have been 'reduced into writing', even when the officer has not recorded the statement in full, but has merely noted the gist of what was stated to him".

34.4 In Emperor v. Ajit Kumar Ghosh, AIR 1945 Cal 159 it was observed by the learned Judge:

"For S. 162 it is immaterial whether the statement is recorded in the actual words of the witness. It is sufficient if it is written in the diary merely in the form of a memorandum".

35 It will thus be clear that in the abovesaid cases even the statements which were not fully recorded or statements which were recorded in the form of memorandum were treated as statements falling within the ambit of section 145 of the Evidence Act. 36 In the aforesaid view of the mater, I hold that the Court below committed an error in passing the impugned order. I hold that whenever the successor Court orders a de novo trial, the statements of the witnesses recorded by the predecessor can be used for contradicting those witnesses. Their previous statements do not become inadmissible or nonexistent on account of the de novo trial.

37 None of the judgments relied upon by Mr. Puj are helpful to him in any manner. First, in none of the decisions, the issue decided by me was under consideration and secondly, all the decisions are only on the point as regards reliance by the successor Judge on the evidence Page 20 of 21 HC-NIC Page 20 of 21 Created On Mon Sep 07 06:00:08 IST 2015 R/CR.MA/15654/2012 CAV JUDGMENT recorded by the predecessor Judge. Permitting the defence to contradict the witnesses with their previous statements in the deposition recorded by the predecessor Judge would not amount to relying on the evidence by the successor Judge recorded by the predecessor Judge. 38 In view of the above, the impugned order is quashed and set aside. The trial Court shall now proceed with the case in accordance with what has been observed by this Court in this judgment. The trial Court shall see to it that the trial proceeds expeditiously and the same is completed within a period of six months from the date of the receipt of the writ of this order.

(J.B.PARDIWALA, J.) chandresh Page 21 of 21 HC-NIC Page 21 of 21 Created On Mon Sep 07 06:00:08 IST 2015

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