VISHNU NATHA PATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE Applicant was convicted of an offence punishable under Section 304A of the IPC and Section 185 of the Motor Vehicles Act by the learned Judicial Magistrate First Class, Dhule. The Applicant appealed from his conviction and the sentence imposed upon him.

(2.) IN the appeal, the Applicant contended that the case was tried in a summary way, and that therefore, the Magistrate, who recorded the evidence himself, was required to decide the matter by delivering a judgment; but that, actually, the judgment was delivered by a Magistrate, who had not recorded the entire evidence. It was contended that the Magistrate had acted on the evidence recorded by his predecessor/s, which was not permitted in the case of a summary trial and therefore, a denovo trial ought to have been held by the learned Magistrate. This contention was accepted by the Court of Sessions, and consequently, the order of conviction and the sentence imposed upon the Applicant, was set aside. The learned Additional Sessions Judge, who disposed of the appeal, directed the matter to be remanded back to the trial Court with a direction to hold a denovo trial from the stage of recording of evidence of the witnesses and decide the case afresh in accordance with law. The Applicant is not satisfied with the fact that his conviction and the sentence imposed upon him, have been set aside. What he contends that while allowing his appeal, the Additional Sessions Judge should have passed an order of acquittal. It is by raising this contention, that he has come before this Court by filing present revision application.

(3.) I have heard the learned counsel for the Applicant. The technical plea that there ought to have been a denovo trial and that the learned Magistrate, who delivered the judgment, was not entitled to act on the evidence recorded by his predecessor, was raised by the Applicant himself. That plea has been accepted. Once such technical plea is accepted, ordinarily, directing a retrial would be a proper order while allowing the appeal. It is not that the conviction of the Applicant had been set aside in appeal on a consideration of the evidence and after considering whether the case has been proved or not.