Allahabad High Court
Manoj Kumar Agrawal And Another vs State Of U.P. And Another on 14 March, 2014
Equivalent citations: 2014 ACD 717 (ALL), (2014) 143 ALLINDCAS 867 (ALL), 2014 (6) ALL LJ 67, (2014) 4 BANKCAS 493, (2014) 3 ALLCRIR 2969, (2015) 1 NIJ 209, (2014) 6 ADJ 183 (ALL), 2015 ALLMR(CRI) 238, 2014 (87) ACC (SOC) 7 (CHH)
Author: Karuna Nand Bajpayee
Bench: Karuna Nand Bajpayee
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 14 Case :- CRIMINAL MISC. WRIT PETITION No. - 4086 of 2014 Petitioner :- Manoj Kumar Agrawal And Another Respondent :- State Of U.P. And Another Counsel for Petitioner :- Kshitij Shailendra Counsel for Respondent :- Govt. Advocate Hon'ble Karuna Nand Bajpayee,J.
This writ petition has been filed assailing the validity of the order dated 18.7.2013 passed by the Judicial Magistrate, Chandausi in Complaint Case No. 1350 of 2006 (Sanjeev Sharma Vs. Manoj Kumar Agrawal and another) under Section 138 Negotiable Instruments Act and also the order dated 24.1.2014 passed by Additional District and Sessions Judge, Chandausi, Moradabad passed in Criminal Revision No. 334 of 2013 (Manoj Kumar Agrawal and another Vs. State of UP. and another) whereby the revision was dismissed and the initial order passed by the trial court was affirmed.
Heard the learned counsel Sri Kshitij Shailendra on behalf of the petitioners and the learned AGA on behalf of the State and also perused the entire record including the impugned orders.
The central hub of the submission made by the counsel is that the act of recording evidence that has been done by the trial court was performed before a different Presiding Officer and not the same who is at present seized with the jurisdiction of the trial. The attention of the Court has been drawn on Section 326 (3) Cr.P.C. which carves out an exception to the preceding sub section and in clear terms intends to oust the jurisdiction of the subsequent presiding officers to decide the cases in which the evidence has already been recorded by their predecessors. The contention is that Section 326 of the Criminal Procedure Code though in general validates the legality of the evidence recorded by the predecessor judges or judicial officers and recognizes its evidentiary value and it is not at all needed that the succeeding judicial officers should again undertake the exercise to recall the witnesses and again record their evidence but, according to the counsel, the trial which takes place in a summary manner or the trial where the procedure of summary trial provided under the Criminal Procedure Code is adopted, then such general provision shall not apply and in the statute itself sub-clause (3) to Section 326 has been provided as an exception. It has also been argued that Section 143 (1) of the Negotiable Instruments Act also makes it clear that the trial of the petitioners shall be presumed to have taken place as a summary trial and, therefore, all the evidence which is finding its place on the records and was recorded by the preceeding judicial officers shall lose its evidenciary value and cannot be acted upon by the succeeding judicial officer who is at present incharge of the case.
Learned AGA in rebuttal has submitted that it transpires from the record that the case was never tried in a summary manner and a different procedure was adopted in the matter. Therefore, in such a situation the second proviso of Section 143 (1) of the Negotiable Instruments Act shall come into operation and the ouster of jurisdiction provided in Section 326 (3) Cr.P.C. shall have no application. As such, the contention of the learned A.G.A. is, that the admissibility of the evidence on record shall remain intact and unaffected.
I had occasion to peruse the impugned orders and it is very much clear that the same objection was also raised before the courts below. The initial order passed by the Judicial Magistrate itself reveals that the trial had taken place as a summon trial. The trial court itself has given its finding that the court was not proceeding in the matter as a summary trial and was not adopting the same procedure.
The revisional court also has looked into this matter and has held that in the matter at hand the procedure of the summon case had been adopted and the case had not been tried summarily at all. Therefore the objection taken up by the counsel was found to have lost its gloss and was also held to be inapplicable. The Court of revision has in a very succinct manner dealt with the entire matter on the point of law and after a very careful analysis of facts and the relevant case law cited before it, by way of a very well reasoned order has distinguished the aforesaid provisions relied upon by the revisionist's counsel in the perspective of the facts of the case and has rightly found them to be inapplicable.
I find myself in complete agreement with the findings given by the revisional court and am of the opinion that had it been a case where the trial would have taken place in a summary manner the situation would have been diffrent. The judicial rationale of Section 326 (3) Cr.P.C. is also not difficult to discern out. When the accused is tried summarily the presiding officer is not required to record the evidence word by word and it is only the substance of the evidence which is required to be recorded. The Judicial Officer who records the substance of the evidence himself knows best as to how and in what manner has he summarised and abridged the statements given before him. If and when a succeeding officer comes and takes over who is then required to look into the same evidence, and is also required to draw out inference out of the same, it may be a hazardous exercise and may have a misleading effect. Therefore, it was found very much desirable that the same judicial officer who had recorded the evidence should also decide the same matter. It was also presumed that the matters which were tried summarily should also get concluded in a short period and would not get procrastinated for an unduly prolix period of time. But nowadays the gross reality is that only as a matter of exception we may find cases where the same judicial officer could have recorded the evidence and pronounced the verdict also . The prolonged interregnum between the outset and conclusion of the trial is often, if not always intercepted by change of presiding officers. May be once, may be more than once even. In the present matter the complaint was lodged in 2006 and the major part of the evidence was recorded in the year 2008 and since then the matter is lingering on and we are in the year 2014 now. If Section 326 (3) Cr.P.C. is brought into operation unmindfully, in the matter like this, then probably it may not be possible to conclude any trial at all. The dockets of the pending cases are already bursting on their seams and it has become a daily feature to see that the trials do not get concluded for years and years together. Even the special provisions of the Negotiable Instruments Act have not proved to be of much avail. In the wake of this woeful reality staring in our face the aforesaid provisions cannot be unmindfully brought into application and there has to be a strict, not liberal, construction of this statute. It shall have to be seen with a deft judicial vigil that procedure of a summary trial has actually been adopted or not.
In any view, so far as the facts of the present case are concerned when the factual basis of the argument itself is not sustainable and has scuttled down and the trial had actually not proceeded as a summary trial, there is hardly any question of 326 (3) Cr.P.C. to be brought into application. It is also true that if the trial court had adopted a different procedure and tried the case not in a summary manner then he ought to have recorded a special finding to that effect. But even if it is presumed that there is no such specific finding given by the Court as was required, if the record itself proves that the court never proceeded in the matter as a summary trial then the absence of the aforesaid finding will be a curable irregularity which may hardly be said to have caused any prejudice to the accused. All the while the trial took place, the accused was very much in the know of the fact that the procedure of summary trial was never being adopted. He neither held any objection nor raised the same.
In the aforesaid view of the matter, there is neither any illegality nor incorrectness nor any impropriety in either of the impugned orders. The revision being sans merit is rejected as such.
Before parting with this order, I feel inspired to leave a note of appreciation for the learned counsel for having argued this matter in a very appreciable manner. He was not only abreast with the latest law but was very much fair while placing the facts of the case before the Court.
Order Date :- 14.3.2014 Manish Tripathi