PALANISAMY GOUNDER Vs. STATE

JUDGEMENT

(1.) .This revision is directed against the judgment made in Crl. Appeal No. 42/83 on the file of the Court of Session, Coimbatore, dismissing the said appeal and confirming the judgment passed by the Trial Court in CC. No. 2219/82 on his file convicting the revision petitioner under S.4(1)(j) of the Tamil Nadu Prohibition Act and S.75 of the City Police Act, and sentencing him to suffer rigorous imprisonment for three months and to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for six weeks, for the offence under S.4(1)(j) of the Prohibition Act, but imposing no sentence for the Offence under S.75 of the City Police Act.

(2.) The only point that has been raised before me is that originally this case was tried by the Judicial Second Class Magistrate, Udumalpet and thereafter it was transferred to the Special Judicial First Class Magistrate (Prohibition), Pollachi, which Court was constituted for trying prohibition offences, that the Special First Class Magistrate, instead of taking fresh evidence from the Medical Officer, has acted on the evidence recorded by the Judicial Second Class Magistrate, Udumalpet already and that this procedure followed by the Special First Class Magistrate is not in compliance with the provisions of the Criminal Procedure Code. According to the learned Counsel, the First Class Magistrate ought to have taken fresh evidence as the Court of the First Class Magistrate is a superior Court to that of the Second Class Magistrate and falls under a different category.

(3.) I see much force in the above argument. S.326 of the Criminal P.C. reads that whenever any Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry 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. In this case, the Special I Class Magistrate cannot be said to be the successor of the Second Class Magistrate, because he is a Magistrate exercising powers superior to those of the Second Class Magistrate and as such belongs to an entirely different category of Magistrates. Therefore, the Special First Class Magistrate ought to have taken fresh evidence instead of acting on the evidence taken already by the Judicial Second Class Magistrate. To that extent, there is an illegality in the procedure adopted by the First Class Magistrate, and hence the conviction cannot be sustained.