Patna High Court
Prafulla Pradhan vs State Of Bihar on 11 November, 1997
Equivalent citations: 1998(1)BLJR498
JUDGMENT Loknath Prasad, J.
1. This revision is directed against the order of conviction dated 3.9.92 passed by Sri Syed Mohammed Mahrooz Alam Special Judge, E.C. Act, Chaibassa, in G.R. Case No. 1/91 thereby and thereunder the petitioner was found guilty under Section 7 of the Essential Commodities Act (in short to be stated as the said Act) and he was sentenced to undergo rigorous imprisonment for one month only.
2. The fact, in short, for the purpose of this revision is that the petitioner, Prafulla Pradhan got a fair price shop at village Ramchandrapur within Jagannathpur police station and got licence No. 11/85. It has been alleged that on 27.12.90 P.W. 1 Md. Wasim Ansari District Supply Officer inspected the fair price shop and it was found that the petitioner had not maintained Sale Register of wheat and sugar properly and it was suspected that he might have sold some quantities of wheat and kerosene oil at higher rate. The District Supply Office submitted a written report on 30.12.90 to the Office-in-charge, Jagannathpur P.S. On the basis of this report, this case was instituted as against the petitioner and after completing the investigation charge-sheet was submitted as against the petitioner.
3. The petitioner has claimed himself innocent in the Court below and his defence was that he was maintaining all the relevant Registers required under the Rule properly and a false report was submitted against him. However, the trial Court found the appellant guilty under Section 7 of the Act for not maintaining Sale Register for wheat and sugar and sentenced him to undergo rigorous imprisonment for a month. Being aggrieved and dissatisfied with this order, this revision has been preferred by the petitioner.
4. At the time of submission, learned Counsel for the petitioner submitted that the conviction and sentence as recorded by Sri Syed Md. Mehfooz Alam, Special Judge, E.C. Act is without jurisdiction and conviction is bad in law for the reason that Sri Alam when succeeded the previous judge simply recorded the evidence of P.W. 6 Shankar Lal Chirania, a formal witness, whereas his predecessor had recorded the evidence of as many as 5 witnesses including that of informant, District Supply Officer. It was further submitted that the successor Court, that is, Sri Alam was not competent to use the evidence of P.Ws. 1 to 5 on whose evidence the conviction was recorded because admittedly the case was heard and tried under the summary procedure as prescribed under the Cr. P.C. and in view of the specific provision of Sub-section (3) of Section 326 of Cr.P.C. the Magistrate of the Judge concerned is not competent to use the evidence recorded by his predecessor and Sri Alain should have re-examined P.Ws. 1 to 5 or they must be produced before him for further cross-examination. But that had not been done. In that view of the matter, the conviction order recorded by Sri Alam on the basis of evidence recorded by his predecessor is to be treated as without jurisdiction and he was not competent to use the evidence and in that view of the matter, the conviction recorded by Sri Alam is apparently bad in law and liable to be set aside.
5. In support of his contention, learned Counsel for the petitioner Mr. P.L. Agarwal, relied upon two case law of our own High Court, that is, on Nathmal Kabra and Anr. v. State of Bihar reported in 1990 PLJR page 477 and that of Vyas Sahu v. State of Bihar reported in 1997 Vol. 1 PLJR 991.
6. Admittedly this case was heard and tried under the summary procedure and evidence of P.Ws. 1 to 5 was not recorded by Sri Alam and he simply recorded the evidence of a formal witness and used the evidence of P.Ws. 1 to 5 and on that basis the impugned order of conviction was passed, which is a clear violation of the provision of Sub-section (3) of Section 326 Cr.P.C. Learned Single Judge of this Court in Nathmal Kabra and that of Vyas Sahu case supra held that since all the offences under this Act are triable in summary way, It is essential that the Magistrate passed the order who has recorded the evidence and as such where the evidence was recorded by a Magistrate and he was transferred the succeeding Court is not competent to proceed from that stage and passing of order on the basis of the evidence of the witnesses recorded by the predecessor is apparently bad in law. It was also held that proviso to Sub-section 1 and 2 of Section 326 Cr.P.C. is not applicable for the reason that in summary trial only the substance of evidence has to be recorded and it is not required to record the entire statement of the witneeses made before the Court. Therefore, the Judge or the Magistrate who has record such substance of evidence is in a position to appreciate the evidence led before him which the successor Magistrate cannot appreciate only on the basis of substance of evidence recorded by his predecessor.
7. On the other hand learned Counsel appearing for the State Mr. Rajgarhia submits that the petitioner has not raised such objection or challenged the jurisdiction of the Special Judge at any stage an when this order of conviction had been recorded this plea had been taking in the revisional Court. It was further submitted that admittedly the successor Court who delivered the judgment had the jurisdiction to try such cases and practically there is nothing on the lecord to show that due to non-examination of P.Ws. 1 to 5 before Sri Alam, the petitioner was put to any prejudice in his defence. If that is so, such irregularity is curable in view of the provision of Section 465, Cr.P.C. In support of this contention he has relied upon a case law of the Apex Court reported in 1962 SC 690, Pyarelal v. state of Punjab but in Pyarelal case also it was held that if there is in competency on the part" of the Magistrate, then the trial will violate.
8. So, for the reason mentioned above, I am of the opinion that using the evidence of P.Ws. 1 to 5 recorded by the predecessor to which Sri Alam was not competent in view of the provision of Sub-section (3) of Section 326, Cr.P.C. the entire order of conviction and sentence as recorded by Sri Alam is definitely bad in law and ass it is a case of the year 1991, it is not safe and desirable to remit the case to the Special Judge again for retrial. More particularly for the reason that the clleged violation is not serious in nature. Accordingly this revision is allowed and judgment and conviction and sentence as recorded in G.R. Case No. 3/91 by Sri Sd. Mohammad Mahfooz Alam Special Judge, E.C. Act, Chaibasa, is hereby set aside and the petitioner is acquitted of the charges levelled against him and he is also discharged from the liability of his bail bond.