BUDDHI SAGAR TEWARI Vs. PRAKASH BHALOTIA

JUDGEMENT

(1.) The complaint was filed in the Court of Special Judicial Magistrate, Gorakhpur on 21-7-1979. He then recorded statements under Sections 200 and 202 Cr. P. C. on 4-8-1979. Thereafter an order was passed that the accused are gazetted officers and their file be sent to C. J. M. for necessary orders. The C. J. M. on 20-8-1979 passed an order that since the accused are class I officers, the file is recalled and be placed on 17-9-1979 for recording statements under Section 202 Cr. P. C. He, however, did not record any statement in light of the aforesaid order and on the strength of the statements record ed in the Court of Special Judicial Magistrate, he passed the impugned order dated 22-11-1979 summoning the applicant under Section 321, I. P. C. While a number of grounds were taken, two grounds were urged. The first ground urged was that the complaint was barred under Section 197 of the Cr. P. C. , as sanction of the State Government was requisite. Such a sanction is requisite only when the accused person is said to have committed any offence while acting or purporting to act in the discharge of his official duty. For applying any such bar that aspect will have to be considered and that in itself means that evidence has to be taken. I do not express any opinion myself be cause that will be a matter on merits and if I express any opinion, one or the other party may be prejudiced. When I pointed out the averments in the complaint, the matter was not pursued. The next argument urged is that the earlier statement recorded by the Special Judicial Magistrate could not be read by the C. J. M. The present Section 322, Cr. P. C. corresponds to Section 346 of the old Cr. P. C. and in the like manner, the present Sec tion 326, Cr. P. C. corresponds to Section 350 of the old Cr. P. C. There are direct authorities laying down that when a case is recalled to another Court under the provisions of Section 346 (old) i. e. 322 of new Cr. P. C. on consideration that the case should be tried or committed for trial by some other Magistrate in the district including the C. J. M. , the statements recorded by the Magis trate before whom the case was pen ding earlier, cannot be read in evidence and will be inadmissible. In the case of State v. Ram Niranjan it was held that the provisions of Section 350 (1) of old Cr, P. C. , which enable a succeeding Magis trate to act on the evidence recorded by his predecessor, cannot be appli cable, where action has been taken under Section 346 of the old Cr. P. C. This principle will hold good under the new Code also. Emphasis was laid upon Section 346 (2) of the old Cr. P. C. providing that the Magistrate to whom the case is sub mitted, may try the case himself or transfer to another Magistrate having jurisdiction. The word trial was interpreted to being the recording of the evidence as well. The language of Section 322 (2) of the new Cr. P. C. is identical. It would no doubt appear that there is no provision in Section 326 of the new Cr. P. C. corresponding to Section 350 (2) of the old Cr. P. C. , but that in itself would not effect any change in the legal position. The language of Sec tion 326 (1) of the new Cr. P. C. is otherwise analogous to the language of Section 350 of the old Cr. P. C. and in the like manner the language of present Section 322 Cr. P. C. is analogous to the language of Section 346 of the old Cr. P. C. and the principles which were laid down under those sections of the old Cr. P. C. would be held good under the new Cr. P. C. as well. There are other rulings also laying down that when there is a transfer of case to a Court for the considerations laid down in the aforesaid Section 346 of the old Cr. P. C. (i. e. 322 of the new Cr. P. C.) it would be a case of de now trial. Jagat Ram v. The State A. I. R. 1956 All. 117, and Panna Lal and others v. State A. I. R. 1952 All. 657, are authorities for the point. In fact transfer of cases under the provisions of Section 322 of the new Cr. P. C. corresponding to Section 346 of the old Cr. P. C. are not routine transfers. They are transfers because the Magis trate before whom the case originally lay finds that the case is to be tried by another competent Court and he is not competent to try the case. When that is the situation, the trial has to be de nova. It has been inter preted in the aforesaid rulings that the expression 'trial' would mean trial de novo and Section 350 (1) of the old Cr. P. C. corresponding to Section 326 of the new Cr. P. C. would not be attracted. The expres sion 'trial' or 'enquiry' will cover all the stages starting from the stage of cognizance as well. I, therefore, hold that the statements recorded by the Special Judicial Magistrate previously could not have been read. It is likely too that the Magistrate must have been influenced by those statements before summoning the accused person while such statements were inadmissible. When that is the position, the ends of justice demands that the illegal procedure adopted should be cured. I, therefore, allow the application under Section 482 Cr. P. C. to the extent that the impugned order dated 22-11-1979 is set aside and quashed and the Magis trate is directed to proceed afresh from the stage of recording of statements under Sections 200 and 202 Cr. P. C. and then to proceed in accordance with law and decide whe ther the accused persons should be summoned. .