G. ILANGOVAN Vs. GOKUL

JUDGEMENT

(1.) This Criminal Revision Petition is filed against the order dated 20.07.2020 in Crl.M.P.No.3488 of 2020 in S.C.No.288 of 2019 on the file of the learned I Additional Sessions Judge, Chennai.

(2.) The ninth respondent Police registered a case against the respondents 1 to 8 herein based on the complaint lodged by the petitioner herein for the offences under Sections 147, 148, 448, 341, 323, 506(ii) IPC r/w. 4 of Tamil Nadu Prohibition of Harassment of Woman Act, 1998, [hereinafter called as TNPHW Act] and 3 of TNPPDL Act. After completion of investigation, he laid charge sheet before the learned Chief Metropolitan Magistrate, Egmore. The learned Magistrate taken the charge sheet on file in C.C.No. 1298 of 2015 for the offences under Sections 147, 448, 352, 323, 506 (ii) of IPC r/w. 149 IPC, Section 3 of TN Medical Service Persons and Medicare Service Institution (Prevention of Violence and Damage or Loss to Property) Act, 2008 and Section 3 of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 (hereinafter called as TNPPDL Act]. Subsequently, after framing charges, during the trial, the learned Magistrate found that the offence under Section 3 of TN Medical Service Persons and Medicare Service Institution (Prevention of Violence and Damage or Loss to Property) Act, 2008 warrants a punishment which shall not be less than 3 years but which may extend to 10 years and with fine. Therefore he has committed the case to the learned Sessions Judge. Challenging the said order passed by the learned Metropolitan Magistrate, the respondents 1 to 8 filed Criminal Revision before this Court in Crl.RC.No.823 of 2017. This Court dismissed the said revision on 27.03.2018 and the challenging the said order, the respondents 1 to 8 filed SLP before the Hon'ble Supreme Court and the Hon'ble Supreme Court also dismissed the said SLP. Subsequently, the first respondent herein filed the petition before this Court in Crl.O.P.No. 10344 of 2019 under Section 482 Cr.P.C to quash the Calender Case in C.C.No.1298 of 2015, this Court dismissed the same on 16.04.2019. In the mean time, the Principal Sessions Judge taken the case on file in S.C.No.288 of 2019 and made over to the I Additional Sessions Judge, Chennai for disposal. When the matter is pending before the I Additional Sessions Judge, the ninth respondent/State filed a petition under Section 326 Cr.P.C to act on evidence already recorded by the learned Chief Metropolitan Magistrate and the said petition was dismissed by the learned Sessions Judge. Challenging the said order, this Criminal revision case is filed before this Court.

(3.) Mr.Singaravelan, learned Senior Counsel appearing for the petitioner would submit that this Court dismissed the petition filed by the petitioner in Crl.O.P.No.24036 of 2019 dated 19.11.2019. However, this Court fixed the time limit for disposal (i.e., 3 months). Aggrieved by the said order, the petitioner filed SLP in SLA (Crl) No.387 of 2020 before the Hon'ble Supreme Court. While dismissing the SLP, the Hon'ble Supreme Court observed that the prosecution/aggrieved party can well file an application under Section 326 of Cr.P.C before the transferee Sessions Court. Therefore, the ninth respondent/State filed a petition before the learned I Additional Sessions Judge under Section 326 Cr.P.C in Crl.M.P.No.3488 of 2020. The learned Judge dismissed the petition without considering the observation made by the Hon'ble Supreme Court in SLP. Aggrieved with the same, this Criminal Revision is filed by the defacto complainant. He would further submit that Section 326 Cr.P.C clearly says that whenever any Judge or Magistrate after having heard and recorded the whole or any part of the evidence in an enquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself. The learned Sessions Judge failed to understand that the word "suceeded by another Judge" must get wide amplitude. In this case, the learned Chief Metropolitan Magistrate is also an Assistant Sessions Judge and evidence recorded by the learned Chief Metropolitan Magistrate can be considered by the Sessions Judge. He would further submit that before the Chief Metropolitan Magistrate, on the side of prosecution, as many as 13 witnesses were examined out of which except P.W.6, P.W.7, P.W.8, P.W.9, P.W.IO and P.W.I3 other witnesses were cross examined by the defence side. Thereafter, defence adopted dilatory tactics and to curtail the same, the petitioner approached this Court praying to expedite the trial by filing petitions in Crl.O.P.No.28121 of 2015, 17864 of 2016, 6726 of 2019 and by its orders dated 25.11.2015, 12.08.2016 and 13.03.2019 respectively, directed the trial Court to complete the trial within a period of three months from the date of receipt of the order. The trial Judge failed to consider the said directions and also failed to consider the reason for which the directions given and he wanted to start from the beginning by issuing summons to all the witnesses and examine in fresh by conducting fresh trial which is highly deprecated. The respondents 1 to 8 also filed Criminal Revision before this Court in Crl.RC.No.823 of 2017 against the order passed by the learned Chief Metropolitan Magistrate. He would further submit that the learned Sessions Judge failed to appreciate that Section 326 in new Code 1973, was amended to vest the power and discretion exercisable thereunder by a Magistrate to a Judge. The learned Sessions Judge failed to take note of the comparative reading of Sub Section (1) of Section 350 of 1898 Code wherein the Magistrate could re-summon the witnesses and recommence the enquiry or trial, which necessarily meant a de novo trial, now after the amendment under Section 326 Cr.P.C the Judge/Magistrate can only re-summon a witness who has already been examined for further examination and re-examination if any. He also placed reliance on the judgment of the Hon'ble Supreme Court reported in 1995 SCC (Crl) 728 (Ranbir Yadav Vs. State of Bihar). As per the said decision, the Magistrate or Judge can exercise his judicial discretion only for further examination of a witness already examined and not for fresh examination of witnesses for a fresh trial. The learned Sessions Judge failed to appreciate Section 273 of the Cr.P.C requires that the evidence shall be taken only in the presence of the Accused. The object of this provision is to ensure that the accused must be put on notice as to what was being spoken by the witness and what are the contents of the documents proved by the said witness. This provision has been held to be mandatory in a catena of judgments of the Hon'ble Supreme Court. If the presence of the accused is dispensed with, an exception has been carved out that it can take in the presence of his advocate. The learned Sessions Judge failed to consider the law that the Provision under Sections 275 and 276 Cr.P.C recording of evidence in Warrant case and Sessions case are like and there is no substantial difference between both the provisions. As per Section 275 Cr.P.C, in all warrant-cases, the evidence of each witness shall be taken down in writing either by the Magistrate himself or by his dictation in open Court. The Magistrate shall at the end sign the deposition and evidence shall form part of the record. So far as the recordings of evidence in a trial before a Court of Session is concerned similar procedure like that of the procedure in a warrant case is provided in Section 276 of Cr.P.C. He would further submit that the evidence recorded by the Judge or Magistrate can be acted upon by the successor Judge or Magistrate. The object of this provision is that since the evidence has been recorded by the predecessor in the presence of the accused and the same has been recorded verbatim, there is no need to record evidence afresh by the successor Judge or a Magistrate. Thus, Section 326 Cr.P.C is only clarificatory and it is not a substantive provision. Further submits that Section 326 Cr.P.C is only clarificatory in nature that too in respect of a simple procedure, it should receive wide interpretation and not a narrow interpretation. The evidence so recorded holds good and form part of the record unless and otherwise the same were struck down/expunged by the higher Courts. In the present case there is no order passed by any of the higher courts nor any higher court had passed an order of de novo trial. Therefore, the impugned order passed by the Sessions Court is not in consonance with the provision of Section 326 Cr.P.C. In the instant case the evidence recorded by the Metropolitan Magistrate can be acted upon by the Sessions Judge. The expressions "Succeeded by another 's employed in Section 326 of Cr.P.C should be understood in the context of the present case that the Sessions Judge is the successor of the Magistrate so far as this case is concerned. The evidence already recorded in the present case would not cause any prejudice to the accused and so the order of the learned Sessions Judge needs to be set aside. The reason given by the Sessions Judge for dismissing the petition filed by the ninth respondent/State is highly technical one. It is actually wasting the precious time of the Court; if the evidence recorded by the Magistrate is taken and the trial continues further where the Magistrate stopped, no prejudice would be caused to the respondents. The learned trial Judge failed to understand the importance of the order of this Court to expedite the trial in a fixed time. Therefore, the order passed by the learned Sessions Judge is liable to be set aside. The learned Senior counsel relied on the following Judgments: