Case Note & Summary
The petitioner, Quazi Syed Salahuddin, filed a Criminal Writ Petition before the Bombay High Court, Bench at Aurangabad, challenging an order dated 18.12.2013 passed by the Additional Sessions Judge, Aurangabad in Criminal Revision No.262/2012. The Sessions Judge had reversed the order of the Judicial Magistrate, First Class, Aurangabad in S.C.C. No.1093/2007, which was a proceeding under Section 138 of the Negotiable Instruments Act, 1881. The Magistrate had held that despite a change of Magistrate, it was not necessary to conduct a de novo trial. The Sessions Judge, however, directed a de novo trial. The petitioner, appearing in person, argued that the evidence had already been recorded, including his own evidence (pages 198-206), evidence of Qazi Syed Mubeen-ru-Rehman (pages 207-214), Shivdas Govindrao (pages 215-217), and the accused Shaikh Nizam (pages 218-224), with further evidence of the accused at pages 225-231. The court considered the provisions of Section 326 of the Code of Criminal Procedure, 1973, which allows a successor Magistrate to proceed from the stage at which the predecessor left the case. The court found that the Sessions Judge had erred in ordering a de novo trial. The High Court allowed the writ petition, quashed the Sessions Court's order, and restored the Magistrate's order, thereby permitting the trial to continue from the stage it was at before the change of Magistrate.
Headnote
A) Criminal Procedure Code - Section 326 - De Novo Trial - Successor Magistrate - In proceedings under Section 138 of the Negotiable Instruments Act, 1881, the successor Magistrate is not required to hold a de novo trial and can proceed from the stage at which the predecessor left the case, as per Section 326 of the Code of Criminal Procedure, 1973. The Sessions Court erred in reversing the Magistrate's order and directing de novo trial. (Paras 3-5)
Issue of Consideration
Whether on change of Magistrate in a proceeding under Section 138 of the Negotiable Instruments Act, 1881, it is necessary to hold a de novo trial.
Final Decision
The High Court allowed the writ petition, quashed the order of the Additional Sessions Judge dated 18.12.2013 in Criminal Revision No.262/2012, and restored the order of the Judicial Magistrate, First Class, Aurangabad below Exh.164 in S.C.C. No.1093/2007.
Law Points
- Section 326 CrPC permits successor magistrate to proceed from stage at which predecessor left
- Section 138 Negotiable Instruments Act
- 1881
- de novo trial not mandatory on change of magistrate
Case Details
2014 LawText (BOM) (05) 8
Criminal Writ Petition No.1232 of 2013
Petitioner (Party-in-person), Shri V.D. Godbharle (A.P.P. for respondent No.1/State), Shri C.V. Thombre (Advocate for respondent No.2)
Quazi Syed Salahuddin s/o Quazi Syed Nazirul Hassan
The State of Maharashtra, Shaikh Nazim s/o Shaikh Zainuddin
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Nature of Litigation
Criminal Writ Petition challenging order of Additional Sessions Judge directing de novo trial in a proceeding under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
Petitioner sought quashing of the Sessions Court's order directing de novo trial and restoration of the Magistrate's order that no de novo trial was necessary.
Filing Reason
The Sessions Judge reversed the Magistrate's order and directed de novo trial despite evidence already being recorded.
Previous Decisions
Judicial Magistrate, First Class, Aurangabad passed order below Exh.164 in S.C.C. No.1093/2007 that de novo trial was not necessary on change of Magistrate. Additional Sessions Judge, Aurangabad in Criminal Revision No.262/2012 reversed that order and directed de novo trial.
Issues
Whether on change of Magistrate in a proceeding under Section 138 of the Negotiable Instruments Act, 1881, it is necessary to hold a de novo trial.
Submissions/Arguments
Petitioner argued that evidence had already been recorded and Section 326 CrPC permits successor Magistrate to proceed from the stage of predecessor. Respondent No.2 opposed the petition.
Ratio Decidendi
Under Section 326 of the Code of Criminal Procedure, 1973, a successor Magistrate is empowered to proceed from the stage at which the predecessor left the case, and a de novo trial is not mandatory merely because of a change in the presiding officer.
Judgment Excerpts
In the present Writ Petition, the petitioner has challenged the order passed by Additional Sessions Judge, Aurangabad on 18.12.2013 in Criminal revision No.262/2012 reversing the order of Judicial Magistrate, First Class, Aurangabad, passed in S.C.C. No.1093/2007.
The Judicial Magistrate, First Class had passed orders below Exh.164 in S.C.C. No.1093/2007 that in spite of change of Magistrate, in proceeding under Section 138 of the Negotiable Instruments Act, 1881, it was not necessary to have de novo trial.
Procedural History
The Judicial Magistrate, First Class, Aurangabad in S.C.C. No.1093/2007 passed an order below Exh.164 that de novo trial was not necessary on change of Magistrate. The respondent No.2 challenged this order in Criminal Revision No.262/2012 before the Additional Sessions Judge, Aurangabad, who reversed the order and directed de novo trial. The petitioner then filed the present Criminal Writ Petition No.1232 of 2013 before the Bombay High Court, Bench at Aurangabad.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 326
