A V SIVAKUMAR Vs. A SHANMUGAM

JUDGEMENT

(1.) The petitioner herein seeks a direction of striking out the chief examination of P.W.1 recorded on 16.11.2006 in S.T.C.No.485 of 2006 on the file of the learned Judicial Magistrate II, Namakkal.

(2.) The prayer made arises in the following manner:

(3.) The learned counsel for the petitioner submits that permitting the chief-examination of P.W.1 for a second time before the second Court had afforded an opportunity to fill up the lacuna in the prosecution case which had been brought out in the course of his cross-examination before the former Court. The learned counsel submits that in any event, the procedure followed, offends the provisions of the Criminal Procedure Code. The present was a case triable as a summons case and could well have been tried summarily. It is only where a Court has tried the case summarily and then the case has been transferred to another Judge or other Magistrate, it would be necessary for the transferee Judge or Magistrate to take fresh evidence. This is so, because Section 326 Criminal Procedure Code provides that a succeeding Magistrate may act on the evidence recorded by his predecessors or partly recorded by his predecessors and partly by himself. Section 326 (3) Criminal Procedure Code specifically makes such a procedure inapplicable in a case tried summarily. In the instant case, the former Court had not tried the case in a summary manner and while so, the transferee Court viz., Judicial Magistrate II, Namakkal could not have recorded the evidence of P.W.1 afresh.