Gujarat High Court
Vasurbhai Bhurabhai Bela vs State Of Gujarat on 5 March, 2024
NEUTRAL CITATION
R/SCR.A/7660/2021 JUDGMENT DATED: 05/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7660 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? -
2 To be referred to the Reporter or not ?
Yes
3 Whether their Lordships wish to see the fair copy
of the judgment ? Yes
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ? -
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VASURBHAI BHURABHAI BELA
Versus
STATE OF GUJARAT
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Appearance:
JIGESH K SHAH(7377) for the Applicant(s) No. 1
MR JF MEHTA(461) for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 05/03/2024
ORAL JUDGMENT
1. In this Special Criminal Application filed under Article 227 of the Constitution of India, the petitioner prays to quash and set Page 1 of 20 Downloaded on : Fri Mar 15 21:20:24 IST 2024 NEUTRAL CITATION R/SCR.A/7660/2021 JUDGMENT DATED: 05/03/2024 undefined aside the order dated 22.08.2019 of the learned Judicial Magistrate First Class, Liliya framing additional charge under section 376 of Indian Penal Code, 1860 and to set aside the order dated 30.12.2020 passed by learned Additional Sessions Judge, Savarkundala confirming the order of the Magistrate in the Criminal Revision preferred before him.
2. Heard learned counsel for the petitioner Mr. Jigesh K Shah and learned Public Prosecutor for the State.
3. Facts leading to the lis in this application may be stated as follows:
The de facto complainant is an anganvadi worker working in anganvadi Centre of Liliya. It is stated that on 03.10.2017 at about 01:30 pm when she was on duty in the anganvadi Centre, the petitioner herein who is resident of Liliya entered the room in the office where she is working and insisted her to surrender to him and thereby hugged her with his forearm and laid her on the floor and inserted his hand in her blouse and gripped her chest and he has also inserted his finger in her vagina. When she shouted, he ran away threatening her that if she complains to anyone that he would kill her.
4. Thereafter, the de facto complainant lodged a report with the police relating to the above incident. Police registered the FIR against the petitioner who is the sole accused in the said case only for the offences punishable under sections 354, 354A and 506(2) of Indian Penal Code, 1860. Eventually, after completion of investigation charge-sheet was also filed in the Court of learned Judicial Magistrate First Class, Liliya for the aforesaid offences.
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5. The learned Magistrate has taken cognizance of the above offences against the petitioner and he has also framed charges only for the aforesaid offences. The trial in the said case commenced. About four witnesses including the de facto complainant were examined before the learned Magistrate. At that stage, the de facto complainant filed an application through the learned A.P.P before the learned Magistrate to frame additional charge under section 376 of Indian Penal Code, 1860 stating that the allegations ascribed in the FIR as well as in the evidence given by the de facto complainant constitutes an offence punishable under section 376 of Indian Penal Code, 1860. According to the complainant the said allegations clearly constitute an offence as defined under section 375(b) of Indian Penal Code, 1860.
6. The learned Magistrate has allowed the said appplication and has framed an additional charge under section 376 of Indian Penal Code,1860 as the facts of the case constitues an offence of rape as defined under section 375(b) of Indian Penal Code, 1860. As the said offence under section 376 of Indian Penal Code is triable by a court of Sessions, he has invoked section 323 of Code of Criminal Procedure, 1973 and committed the said case to the Court of Sessions.
7. The petitioner has challenged the said order of framing additional charge under section 376 of Indian Penal Code, 1860 and the order of committal before the sessions court by way of preferring a criminal revision against the said order under section 397(1) of Code of Criminal Procedure, 1973. The learned Sessions Judge upheld the order of the learned Magistrate and by his order dated 30.12.2020 has dismissed the said revision.
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8. Aggrieved by the impugned orders of the learned Magistrate and the learned revisional Court, the petitioner is before this Court by way of filing this application under Article 227 of the Constitution of India assailing the legality and validity of the impugned orders.
9. Learned counsel for the petitioner vehemently contended that the said allegations are very much made in the FIR itself when it was lodged and the police did not register any case under section 376 of Indian Penal Code, 1860 and even at the time of filing charge-sheet after completion of investigation the police did not include the charge under section 376 of Indian Penal Code, 1860 and even the learned magistrate also despite the fact that the said allegations were there in the FIR that he also did not initially frame any charge under section 376 of Indian Penal Code,1860 and it is only after the trial commenced and at the fag end of the trial when the case is coming on for examination of the investigation officer that he has entertained the application filed for framing additional charge and framed the charge under section 376 of Indian Penal Code, 1860 and in the said circumstances of the case the impugned order of the learned magistrate framing additional charge at the fag end of the trial is not sustainable under law. He contends that the revisional Court also committed a grave error in upholding the said order of the learned Magistrate and dismissing the revision. Therefore, he would pray to set aside the order of the learned Magistrate and the revisional Court framing additional charge under Section 376 of Indian Penal Code, 1860.
10. He then vehemently contends that even after the case is committed in terms of section 323 of Code of Criminal Procedure, 1973, the learned 4th Additional Sessions Judge, Savarkundala has Page 4 of 20 Downloaded on : Fri Mar 15 21:20:24 IST 2024 NEUTRAL CITATION R/SCR.A/7660/2021 JUDGMENT DATED: 05/03/2024 undefined to conduct the trial from the stage where it ended before the learned Magistrate and continue the trial from that stage and he cannot take up a de novo trial. He contends that the learned 4th Additional Sessions Judge has now framed charges afresh and then issued summons to the witnesses to take up fresh trial and the same is not permissible under law. He contends that if any such de novo trial is taken up, prejudice would be caused to the case of the accused. It is stated that as all the material witnesses except the de facto complainant turned hostile before the learned Magistrate and did not support the prosecution case that if any de novo trial is taken up by the learned Sessions Judge and the said witnesses are again examined it would cause any amount of prejudice to the case of the accused. Therefore, it is prayed that in case this Court upholds the order of the learned Magistrate and the revisional Court framing additional charge that a direction may be given to the learned Sessions Judge to proceed with the trial of the case from the stage where it ended before the learned Magistrate and not to take up the de novo trial.
11. Per contra, learned A.P.P for the State contends that a clear allegation is made in the FIR that the petitioner has not only outraged the modesty of the de facto complainant but he has also committed an offence of rape as defined under section 375B of Indian Penal Code, 1860 which constitutes an offence under section 376 of Indian Penal Code, 1860, but initially police did not register the case for the offence under section 376 of Indian Penal Code, 1860 and during the course of trial when the de facto complainant got an application filed through learned A.P.P to frame an additional charge to that effect that the learned Magistrate has rightly in exercise of his power conferred under section 216 of Code of Criminal Procedure, 1973 framed an additional charge and Page 5 of 20 Downloaded on : Fri Mar 15 21:20:24 IST 2024 NEUTRAL CITATION R/SCR.A/7660/2021 JUDGMENT DATED: 05/03/2024 undefined it is perfectly sustainable under law in the given facts and circumstances of the case. He would submit that charge can be altered or added at any stage of the case before pronoucing the judgment and as such the impugned order passed by the learned Magistrate cannot be set aside. He would also contend that the revisional Court has also rightly upheld the said order and there is no legal infirmity in the impugned orders of the learned Magistrate and the revisional Court. So, he would contend that the said orders are not liable to be set aside as they are legally sustainable.
12. As regards the contention raised by learned counsel for the petitioner that the Sessions Judge cannot now take up de novo trial, learned A.P.P contends that as the case is now committed to the Sessions Court that the Sessions Court has to take up a de novo trial and he cannot act upon the evidence that was recorded by the learned Magistrate which is not a trial Court. So, he submits that the learned Sessions Judge is right in ordering a de novo trial and it would not cause any prejudice to the case of the accused as contended by him before this Court. Therefore, learned A.P.P has strongly opposed the application and prayed to dismiss the application
13. As can be seen from the allegations as ascribed in the FIR by the de facto complainant, it is clearly stated by her in the said FIR that was lodged by her with the police after the alleged offence took place that the accused has by force hugged her and has put his hand in her blouse and gripped her chest and laid her on the floor and inserted his finger in her vagina. So, the said allegations undoubtedly constitute a clear offence of rape as defined in section 375(b) of Indian Penal Code, 1860. For better appreciation section 375(b) is abstracted hereunder and it reads thus:
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375. Rape - A man is said to commit rape if he
(a) -
(b) inserts, to any extent, any object or part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person.
14. A plain reading of the aforesaid definition given under section 375(b) of Indian Penal Code, 1860 makes it clear that if a man inserts to any extent any part of his body into the vagina of a woman that it amounts to commission of offence of rape. If the allegations ascribed in the FIR are examined in the light of the aforesaid definition given, it absolutely leaves no room to entertain any doubt that the facts of the case prima facie constitute an offence under section 375(b) which is punishable under section 376 of Indian Penal Code, 1860. But, for the reasons best known to the SHO of the Police Station, despite the fact that the contents of the FIR clearly constitute the said offence under section 375(b) of Indian Penal Code, 1860, the FIR was not registered for the said offence. It was only registered for the offences punishable under section 354, 354(a), 506(2) of Indian Penal Code, 1860. Even the charge-sheet was also filed only for the said offences. Even the learned Magistrate also initially did not properly apply his mind to the facts of the case and the allegations ascribed in the FIR at the time of framing charges and he also did not frame any charge under section 376 of Indian Penal Code, 1860. Charges only for the offences punishable under section 354, 354(a), 506(2) of Indian Penal Code, 1860 were framed by the learned Magistrate. The trial commenced on the basis of the said charges that are framed by the learned Magistrate. The de facto complainant was examined as PW1 who is the victim in the case and three other witnesses were Page 7 of 20 Downloaded on : Fri Mar 15 21:20:24 IST 2024 NEUTRAL CITATION R/SCR.A/7660/2021 JUDGMENT DATED: 05/03/2024 undefined also examined to substantiate the case of the prosecution. When the said case is posted for further evidence of the prosecution, at that stage, an application was filed at the instance of the de facto complainant by the learned A.P.P to frame additional charge for the offence punishable under section 376 of Indian Penal Code, 1860. It was filed on the ground that a clear allegation which constitute an offence under section 375(b) of Indian Penal Code, 1860 is made in the FIR and that the de facto complainant who was also examined as PW 1 has deposed in her evidence relating to said said allegations which constitutes an offence punishable under section 375(b) of Indian Penal Code, 1860. The learned Magistrate after hearing the prosecution and the accused has framed an additional charge as sought for in exercise of his power conferred on him under section 216 of Code of Criminal Procedure, 1973.
15. Since the petitioner has now challenged the legal validity of the said order of learned Magistrate on the ground that the additional charge was framed at a belated stage, it is expedient to go through section 216 of Code of Criminal Procedure, 1973 which confers power on the Court to alter or frame an additional charge at any stage before the pronouncement of judgment. Section 216 of Code of Criminal Procedure, 1973 reads thus:
216. Court may alter charge.--(1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such Page 8 of 20 Downloaded on : Fri Mar 15 21:20:24 IST 2024 NEUTRAL CITATION R/SCR.A/7660/2021 JUDGMENT DATED: 05/03/2024 undefined alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
16. A perusal of the aforesaid section makes it manifest that the Court can alter or add to any charge at any time before judgment is pronounced and every such additional charge shall be read over and explained to the accused. So, it is well within the competence of the Court whether it is Court of a Magistrate or Court of Sessions Judge to alter the charge or to frame an additional charge based on the facts and circumstances of the case and the evidence that is adduced before it. As a clear allegation is made in the FIR which constitute an offence under section 375(b) of Indian Penal Code, 1860, as discussed supra and as the de facto complainant who is the victim also clearly deposed in her evidence before the learned Magistrate relating to the said allegation which prima facie constitutes an offence under section 376 of Indian Penal Code, 1860, the learned Magistrate has rightly framed an additional charge based on the said material which is before him for the offence under section 375(b) of Indian Penal Code, 1860 which is punishable under section 376 of Indian Penal Code, 1860.
17. When the said order of the learned Magistrate was Page 9 of 20 Downloaded on : Fri Mar 15 21:20:24 IST 2024 NEUTRAL CITATION R/SCR.A/7660/2021 JUDGMENT DATED: 05/03/2024 undefined challenged before the revisional Court, the revisional Court also after considering the allegations in the FIR and the evidence of the de facto complainant examined as PW 1 has rightly upheld the order of the learned Magistrate in framing the said additional charge and rightly dismissed the revision. Therefore, the said two orders of the learned Magistrate and the revisional court do not suffer from any legal flaw or infirmity warranting interference of this Court with the said orders and to set aside the same. In the given facts and circumstances of the case, the impugned orders of both the learned Magistrate and the revisional Court are perfectly sustainable under law and they are not liable to be set aside.
18. Now, it is relevant to go through and consider section 323 of Code of Criminal Procedure, 1973. It deals with the procedure to be followed by a Magistrate when it appears to him at any stage of the proceeding before him and before signing the judgment that the case is one which ought to be tried by the Court of Sessions. For better appreciation, section 323 of Code of Criminal Procedure, 1973 is extracted hereunder and it reads thus;
323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed.--If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing the judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained 1 [and thereupon the provisions of Chapter XVIII shall apply to the commitment so made].
19. The aforesaid section clearly mandates that in any inquiry into an offence or a trial before a Magistrate, if it appears to the Page 10 of 20 Downloaded on : Fri Mar 15 21:20:24 IST 2024 NEUTRAL CITATION R/SCR.A/7660/2021 JUDGMENT DATED: 05/03/2024 undefined Magistrate at any stage of the proceedings before signing the judgment that the case is one which ought to be tried by the Court of Sessions, he shall commit it to the Court of Sessions and thereupon the provisions of Chapter VXIII of Code of Criminal Procedure, 1973 shall apply to the commitment so made.
20. As it has come out during the course of trial of the case that a case under section 375(b) is made out from the facts of the case and evidence on record, the learned Magistrate has rightly in exercise of his power conferred on him under section 323 of Code of Criminal Procedure, 1973 and following the procedures prescribed therein committed the said case to the Court of Sessions as the offence under Section 376 of Indian Penal Code, 1860 is exclusively triable by a Court of Sessions.
21. Pursuant to the said order of commitment of case to the Court of Sessions passed by the learned Magistrate, the case is now before the learned 4th Additional Sessions Judge, Savarkundala.
22. Now, the crucial question that arises for determination in this case is whether the learned 4 th Additional Sessions Judge (hereinafter for short "Sessions Judge") has to continue the trial of the case from the stage where it ended before the learned Magistrate before committal of the case or whether he has to take up a de novo trial or not. That is the clean question of law that arises for determination in the present application as per the submissions made by learned counsel for the petitioner.
23. The legal position in this regard when a case is committed by the learned Magistrate for trial to the Sessions Judge under section Page 11 of 20 Downloaded on : Fri Mar 15 21:20:24 IST 2024 NEUTRAL CITATION R/SCR.A/7660/2021 JUDGMENT DATED: 05/03/2024 undefined 323 of Code of Criminal Procedure, 1973 whether the learned Sessions Judge has to continue the trial from the stage where it ended in the Court of learned Magistrate or whether he has to conduct a de novo trial is no more a res integra and the same has been well settled by way of catena of judicial pronouncements of various High Courts.
24. Before discussing the said law on the point, it is pertinent to note here that section 323 of Code of Criminal Procedure, 1973 itself mandates that when a case is committed by the Magistrate to the Court of Sessions under section 323 of Code of Criminal Procedure, 1973 then the Sessions Judge has to follow the procedure contemplated under Chapter XVIII of the Code of Criminal Procedure, 1973. The Chapter XVIII of Code of Criminal Procedure, 1973 deals with procedure to follow in conducting Sessions trial by the Sessions Judge. It starts with section 225 and ends with section 237. As can be seen from the said Chapter, Sessions Judge has to frame charges and explain the same to the accused and thereafter if he pleads not guilty he has to record the evidence and then hear arguments and then pronounce the judgment.
25. Considering the said mandate of section 323 of Code of Criminal Procedure, 1973, the Sessions Judge has to invariably follow the procedure under Chapter XVIII of Code of Criminal Procedure, 1973. Various High Courts in the country have taken a consistent view that the Sessions Judge has to conduct a de novo trial and he cannot continue the trial of the case from the stage where it ended before the learned Magistrate. Even the law relating to section 326 of Code of Criminal Procedure, 1973 which is now invoked by the learned counsel for the petitioner which says Page 12 of 20 Downloaded on : Fri Mar 15 21:20:24 IST 2024 NEUTRAL CITATION R/SCR.A/7660/2021 JUDGMENT DATED: 05/03/2024 undefined that the successor Magistrate or the Judge can act upon the evidence that was recorded by his predecessor and proceed further with the case was also discussed elaborately in the said decided cases.
26. In fact, as per section 326 of Code of Criminal Procedure, 1973, earlier the power to act upon the evidence recorded by the predecessor was conferred only on the Magistrate. The word 'Judge' was not found in the section earlier. However, by way of amendment in the year 1978, the word 'Judge' was also incorporated in it. So, now both the Magistrate as well as Sessions Judge is empowered to act upon the evidence recorded by his predecessor and proceed with further trial of the case. But as can be seen from the section no power is conferred on the Sessions Judge to act upon the evidence recorded by the Magistrate in the committal Court. It is altogether a different situation which is not covered by section 326 of Code of Criminal Procedure, 1973. The successor magistrate can act upon the evidence recorded by his predecessor and similarly, a successor sessions judge can act upon the evidence recorded by predecessor sessions judge. But there is nothing in the section to indicate that a Session Judge can act upon the evidence recorded by a magistrate of a committal Court.
27. Therefore, when the similar question came up for consideration before the Madras High Court in the case of Dr. G Ilangovan Vs Gokul @ Gokulkrishnan rendered in Criminal.RC No. 952 of 2020, the Madras High Court has considered the scope of Sections 323 and 326 of CrPC in a situation where 13 witnesses were already examined before the Magistrate who committed the case to the Sessions Court. The Madras High Court in clear terms held that once the case has been committed to the Sessions Court, Page 13 of 20 Downloaded on : Fri Mar 15 21:20:24 IST 2024 NEUTRAL CITATION R/SCR.A/7660/2021 JUDGMENT DATED: 05/03/2024 undefined the Sessions Court has to proceed as per the provisions of Chapter XVIII of Code of Criminal Procedure, 1973 and in such a case, section 326 of Code of Criminal Procedure, 1973 would not apply. The relevant portion of the said judgment which is germane in the context to be considered is extracted hereunder and it reads thus:
"13. A reading of Sections 323 of Cr. P.C. clearly shows that in any enquiry into an offence or a trial before the learned Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions therein. Thereupon provisions of Chapter XVIII of Cr. P.C. shall apply to the committal so made. Chapter XVIII of Cr. P.C. starts from Section 225 Cr. P.C. to 237 Cr. P.C. Therefore, any Magistrate or Metropolitan Magistrate cannot be equated with the Sessions Judge and language employed is committal. Though the above said provisions says that if the case is triable by the Sessions Judge, the case has to be committed by the Magistrate. The Magistrate includes Chief Metropolitan Magistrate and Chief Judicial Magistrate. Once the case is committed, the committal Court (Sessions Court) follows the procedure as contemplated under Sections 225 to 237 Cr. P.C. xxx xxx xxx
18. The language employed in both Sections 323 and 326 Cr. P.C., is very clear. In this case, since Chief Metropolitan Magistrate has no jurisdiction to try as he has got power only to pass sentence for a term upto 7 years, he has committed the case to Court of Session. Therefore, once the case is committed to Sessions Court as per section 323 Cr. P.C., provisions of Chapter XVIII has to be followed. In such view of the matter, the Chief Metropolitan Magistrate Page 14 of 20 Downloaded on : Fri Mar 15 21:20:24 IST 2024 NEUTRAL CITATION R/SCR.A/7660/2021 JUDGMENT DATED: 05/03/2024 undefined cannot be treated as Predecessor of the Sessions Judge and the Sessions Judge cannot be stated as Successor of Chief Metropolitan Magistrate. As per Section 323 Cr. P.C., the procedure when after commencement of inquiry or trial, if the Magistrate finds case should be committed, if any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court and thereupon provisions of Chapter XVIII shall apply. Therefore, Section 326 Cr. P.C., regarding evidence partly recorded by one Judge or Magistrate and partly by another cannot be applied herein."
28. Therefore, it is clear from the law laid down in the aforesaid judgment of the Madras High Court that section 326 of Code of Criminal Procedure, 1973 cannot be invoked in the given facts and circumstances of the case. It is clearly clarified in the above judgment that in such a situation the Chief Metropolitan Magistrate cannot be treated as predecessor of the Sessions Judge and the Sessions Court cannot be treated as successor of the Chief Metropolitan Magistrate and ultimately it is authoritatively held that section 326 of Code of Criminal Procedure, 1973 cannot be applied to the facts of the case.
29. The Punjab and Haryana High Court also had an occasion to deal with the similar issue and has taken the same view. In the case of Mahamood Hasan and others Vs State of Haryana 2019 SCC OnLine 7637 it is held as follows:
"17. This matter can be examined from another angle. Whatever evidence has been led before the Court of Judicial Page 15 of 20 Downloaded on : Fri Mar 15 21:20:24 IST 2024 NEUTRAL CITATION R/SCR.A/7660/2021 JUDGMENT DATED: 05/03/2024 undefined Magistrate, would not be read as evidence while deciding the case by the Court of Sessions. The Court of Sessions is obligated upon to follow the procedure as provided in Chapter XVIII of "the Code"
which requires framing of charge and thereafter proceeding to record evidence of the prosecution in case the accused does not plead guilty. The Court of Sessions also has a power to remit the case back to the Magistrate after finding that the case does not involve the offence which is exclusively triable by the Court of Sessions. If the Court of Sessions agrees with the committing Magistrate, first the charge has to be framed and thereafter the evidence has to be led de-novo. Therefore, once the Magistrate found that the case is exclusively triable by the Court of Sessions, he should have left it to the Court of Sessions to proceed in accordance with law."
30. Thus, the Punjab and Haryana High Court has categorically held that if the Court of Session agrees with the committing Magistrate, then the trial has to be started de novo in accordance with the procedure prescribed under Chapter XVIII of the CrPC and first the charge has to be framed and thereafter, evidence has to be led de novo."
31. Following the ratio laid down in the judgment of the Madras High Court and the Punjab Haryana High Court, the Delhi High Court in the judgment rendered in the case of Shankar Vs State of NCT of Delhi and Anr reported 2023 SCC OnLine 7837 very recently held after considering the scope of section 326 of Code of Criminal Procedure, 1973, that the Sessions Judge has to only conduct a de novo trial after the case is committed under section 323 of Code of Criminal Procedure, 1973 and he cannot act upon the evidence that is recorded by the Magistrate.
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32. The Constitutional validity of section 326 of Code of Criminal Procedure, 1973 was also challenged before the High Court of Madhya Pradesh on the ground that it amounts to causing prejudice to the accused in the case of Raju @ Rohitashva Dubey and Anr. Vs Union of India and Ors. In that case also, it was contended by challenging the Constitutional validity of section 326 of Code of Criminal Procedure, 1973 that if the trial is completed before the Magistrate before committing the case to the Court of Sessions if the accused has to face de novo trial before the Court of Sessions that it would violate the right of speedy trial of the accused in terms of section 21 of the Constitution of India. The Division Bench of Madhya Pradesh High Court rejected said challenge and held as follows:
"The provision of section 323 Cr.P.C. does not adversely affect the right of speedy trial, but, it goes to the very root of the trial where the case should be tried. If the case is not triable or ought not to be tried by the Magistrate and during the course of enquiry he comes to such a conclusion, he obviously refers the case to the competent Court as offender cannot be allowed to go unpunished, is also underlying principle of public policy under section 323 of Cr.P.C. The power of the Magistrate under section 323 of Cr.P.C. is in addition to his power under section 209 of the Code to commit cases exclusively triable by the Court of Sessions to that Court. The provisions contained in section 244 Cr.P.C. cannot take away the powers vested in the Magistrate under section 323 of Cr.P.C. to commit the case to the court of Sessions at any stage of the proceedings before signing the judgment provided the case is one which ought to be tried by the Court of Sessions. Merely because a case has been instituted otherwise than Page 17 of 20 Downloaded on : Fri Mar 15 21:20:24 IST 2024 NEUTRAL CITATION R/SCR.A/7660/2021 JUDGMENT DATED: 05/03/2024 undefined on a police report, it cannot take away the power vested in the Magistrate under section 323 Cr.P.C. to commit the case to the court of Sessions at any stage of the proceedings."
33. The Delhi High Court in the above referred Shankar's case quoted the judgment of the Madhya Pradesh High Court with approval and concurred with the same in upholding the constitutional validity of 323 of Code of Criminal Procedure, 1973 and ultimately in para no. 25, the Delhi High Court clearly held as follows:
"When a case is committed by the Court of Magistrate to the Court of Session, the Magistrate becomes functus officio and any evidence recorded therein cannot be held to be admissible for the purposes of a de novo trial before the committal Court. Therefore, the evidence would also have to be recorded de novo."
34. Thus, from the law that is enunciated in the aforesaid judgments by various High Courts, the legal position is made very clear that when a case is committed by the Magistrate under section 323 of Code of Criminal Procedure, 1973, the Sessions Judge has to follow the procedure prescribed in Chapter XVIII of Code of Criminal Procedure, 1973 and from the stage of framing charges he has to invariably take up a de novo trial. It is imperative on his part to take up de novo trial. He cannot act upon the evidence that was recorded by the Magistrate which is a committal Court. No prejudice would be caused to the accused by taking up such de novo trial by the Sessions Court as has been contended by the petitioner. This Court, after analyzing the aforesaid provisions of law i.e. section 323 and 326 and Chapter XVIII of Code of Criminal Procedure is in complete agreement with the law laid Page 18 of 20 Downloaded on : Fri Mar 15 21:20:24 IST 2024 NEUTRAL CITATION R/SCR.A/7660/2021 JUDGMENT DATED: 05/03/2024 undefined down by above High Courts in above reported judgments.
35. Learned counsel for the petitioner relied on the judgment of Apex Court rendered in the case of Bhaskar Vs State represented by Inspector of Police, Vellore Taluk Police Station reported in 1999 (0) GLHEH - SC 3417 in support of his contention. That was the case where the prosecution was initiated in Special Court of TADA for the offences punishable under section 302 read with section 120(b) of Indian Penal Code, 1860 and section 4 of Public Property (Prevention of Damage and Loss) Act and under Section 3 and 5 of TADA. During the process of the trial, the period of TADA expired. So, the Public Prosecutor has withdrawn the offences under TADA. The Designated Court under TADA in the State of Tamil Nadu was abolished after the expiry of the said period. Thereafter, the case was made over to the Court of Additional Sessions Judge, Vellore for trial of the remaining offences. The Sessions Court proposed to proceed with the trial from the stage at which the Designated Court seized to function by keeping the evidence already recorded before the Designated Court as duly recorded evidence in the said case. Therefore, in the said circumstances, as both the Designated Court of TADA was presided over by the Sessions Judge and after its abolition, as the case is made out to another Sessions Judge, it is held that under section 326 of Code of Criminal Procedure, 1973, the Additional Sessions Judge can act upon the evidence of the TADA Court which was also presided over by the Sessions Judge. So, there is absolutely no difficulty in the said case to apply section 326 of Code of Criminal Procedure, 1973, as both the predecessor Judge and the successor Judge are Sessions Judges. Here the facts are otherwise in the present case as discussed supra. Therefore, the aforesaid judgment has no application to the facts of the present case.
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36. So, the contention of the petitioner that learned 4 th Additional Sessions Judge, Savarkundala has to continue the trial from the stage where it ended in the committal Court and that he cannot take up a de novo trial is absolutely devoid of merit and the same cannot be countenanced as the said contention clearly runs contrary to the settled legal position as discussed above.
37. Resultantly, the application is dismissed. However, as the case is an old case, the learned Sessions Judge shall make an endeavour to conclude the trial of the case as expeditiously as possible.
(CHEEKATI MANAVENDRANATH ROY, J) ARCHANA S. PILLAI Page 20 of 20 Downloaded on : Fri Mar 15 21:20:24 IST 2024