Case Note & Summary
The petitioner, Ulhas s/o Fulchand Rathod, was being tried in Summary Criminal Case No. 597/2008 for offences under Sections 143, 294, 341, 504, 506 of the Indian Penal Code read with Section 135 of the Bombay Police Act. The predecessor Judicial Magistrate First Class, Osmanabad, had recorded the plea and examined three prosecution witnesses, with cross-examination by the accused, concluding oral evidence on 15.11.2011. Upon transfer of the presiding officer, the prosecution filed an application (Exhibit 54) seeking a de novo trial, which was allowed by the successor Magistrate on 26.11.2012, relying on Section 326(3) of the Code of Criminal Procedure, 1973. The petitioner opposed the application, arguing that the matter was ready for final arguments and that a de novo trial would cause undue hardship. The High Court, relying on the precedent in Shivaji Sampat Jagtap v. Rajan Hiralal Arora (2007 Cri.L.J. 122), held that Section 326(3) does not mandate a de novo trial in summary cases where evidence has already been recorded by the predecessor. The successor Magistrate can proceed from the stage of judgment if the evidence is available on record. The impugned order was quashed, and the Magistrate was directed to proceed from the stage of final arguments.
Headnote
A) Criminal Procedure - Summary Trial - De Novo Trial - Section 326(3) CrPC, 1973 - Successor Magistrate ordered de novo trial after predecessor recorded evidence - Held that Section 326(3) does not compel retrial; successor can proceed from stage of judgment if evidence is on record - Impugned order quashed (Paras 1-8).
Issue of Consideration
Whether a successor Magistrate can order a de novo trial in a summary case under Section 326(3) of the Code of Criminal Procedure, 1973, when the predecessor had already recorded the plea and evidence of prosecution witnesses.
Final Decision
The impugned order dated 26.11.2012 passed by the learned Judicial Magistrate First Class, Osmanabad is quashed and set aside. The learned Magistrate is directed to proceed with the case from the stage of final arguments, without ordering a de novo trial.
Law Points
- Section 326(3) CrPC does not mandate de novo trial in summary cases if evidence has already been recorded by predecessor
- successor magistrate can proceed from stage of judgment
