PRATIBHA PANDURANG SALVI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Criminal Revision Application is filed against the order of conviction passed by the learned Sessions Judge, Ratnagiri dated 7/8/1999 by which the applicant nos.1,2 and 3 were held guilty for the offences punishable under sections 341 and 352 r/w section 34 of the Indian Penal Code . The applicant no.1 was also convicted for the offence punishable under section 504 of the Indian Penal Code. The applicants were sentenced to undergo R.I.for one month and to pay fine of Rs.100/- each.

(2.) Respondent no.2 is the original complainant , who has filed a private complaint against the appellants who are the police officials. Respondent no.2 was called for the purpose of enquiry to Ratnagiri police station as the complaint was made by his wife and other tenants that respondent no.2 - landlord has refused permission for electricity connection to the tenants. At the police station the applicants detained him in police lock up and threatened him. The offence was committed by the applicants when they were on duty in the police station. All the defences of the applicants including the requirement of the sanction under section 197 of the Criminal Procedure Code were rejected and they were convicted by the Court of first instance i.e. the Judicial Magistrate, F.C.,Ratnagiri.Mr.Bhadbhade, the learned counsel for the applicants has submitted that the applicants have preferred this Revision Application mainly on the point of law i.e. though the offences for which the applicants were charged i.e. sections 341, 352, 504, 506 of the Indian Penal Code were triable summarily and therefore, the matter was treated as Summary Case No.726/99 and it ought to have been tried in a summary way under Chapter XXI of the Criminal Procedure Code. The learned counsel has further submitted that as per Section 326 of the Criminal Procedure Code if the Magistrate who has recorded the evidence is transferred then the other Magistrate who is a successor can take up the case in continuation and so also is empowered to deliver the judgment in the said matter . However , proviso of section 326(3) of the Code puts rider for the cases which are tried summarily. No powers are delegated in the Criminal Procedure Code to the successor Magistrate to try a summary trial under Chapter XXI of the Code in continuation if the evidence is partly recorded by his predecessor . The learned counsel has submitted that in the present case one Judicial Magistrate, F.C. has recorded the evidence and the other Magistrate has delivered the judgment which is not an irregularity but it is an illegality which vitiates the trial . The order requires to be set aside . In support of his submissions he has relied upon the following rulings.

(3.) Section 326 :- Conviction or commitment on evidence partly recorded by one Magistrate and partly by another .-(1) Whenever any (Judge or Magistrate), after having heard and recored 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. Provided that if the succeeding (Judge or Magistrate) is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice , he may re-summon any such witness , and after such further examination, cross-examination and re-examination , if any, as he may permit ,the witness shall be discharged.