VIJAYSINH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard learned Advocate Shri NB Khandare for applicant and learned APP Shri RB Bagul for Respondent-State.

(2.) Learned Advocate for the applicant submitted that the applicant is accused No.2 in original Case bearing RCC No.13/2004, which was pending before learned JMFC, Georai. However, in view of the amendment under Section 353 and 332 of IPC, the case has been committed to the Court of Sessions and now it is numbered as Sessions Case No.137/2019. The applicant seeks to challenge the order dated 14.7.2020 passed by learned Additional Sessions Judge, Beed below Exhibit-281 in the said Sessions Case. The applicant had filed the said application at Exh.281 with a request that since the forum has been changed, in view of Section 326 of Cr.P.C., the evidence that was recorded by JMFC, Georai, cannot be read and the accused is entitled for a fresh trial and, therefore, de novo trial is required to be held. It is alleged by the prosecution that the incident had taken place on 27.11.2003. Two separate FIRs came to be registered with Georai Police Station. In one of the FIRs, present applicant and one Rohit Rajabhau Pandit are the accused persons. The trial was, in fact, proceeded before the learned JMFC, Georai. Statements of the accused persons under Section 313 of Cr.P.C. have also been recorded. However, in view of the amendment, now, the case has been committed. It has been submitted that Section 326 of Cr.P.C. would be applicable to a Magistrate or a Judge when the case is transferred to the equal Court and not where the case is committed to the Court of Sessions. Section 323 of Cr.P.C. would be applicable and thereafter there should be a de novo trial. The learned Additional Sessions Judge erred in rejecting the application at Exh.281 filed by the present applicant, which is under challenge in this application. He, therefore, prayed for allowing the application.

(3.) Learned APP submitted that almost the entire trial was concluded before the JMFC, Georai. Even the statements of the present applicant and the other accused came to be recorded under Section 313 of Cr.P.C. Further, when the question was asked to the accused as to when his statement was recorded and whether he wants to examine any witness, at that time, all the accused, including the present applicant, declined to do so. Now, because of change in the Forum, he cannot ask for de novo trial as of right. This Court in Criminal Writ Petition No.945/2019 and other connected Criminal Writ Petitions, decided on 14th February, 2020, has held that, "de novo trial is not necessary in each and every case." The present applicant in his application at Exh.281 has not stated that any prejudice has been caused to him or if any prejudice would be caused to him, if his application is not allowed. There is no merit in the present application and it deserves to be rejected.