RAMNIVAS SARDA Vs. STATE OF A P

JUDGEMENT

(1.) The petitioners A-1 and A-2 in C.C.No. 45 of 1984 on the file of the VII Metropolitan Magistrate, Hyderabad, the 1st petitioner is the propritor of the 2nd petitioner proprietary concern. The petitioners were convicted under Section 7(1) r/w Section 2(ia) and A & C, Appendex B, C1.A.1722 of A.P'. Prevention of Food Adulteration Act and Rules and were sentenced to suffer Rigorous Imprisonment for a period of six months and to pay a fine of Rs. 1,000/- each. On appeal in Crl.A.No. 311 of 1990 the III Addl. Metropolitan Sessions Judge, Hyderabad, confirmed the conviction and sentences. Questioning that order the Crl.R.C. is filed.

(2.) The contention of the learned Counsel for the petitioners is that Sri R.Krishnamohan Rao, the then VII Metropolitan Magistrate, Hyderabad, has recorded the evidence and examined, the accused under Section 313,Cr.P.C. on 28-3-90. Subsequently, he was transferred by orders dt. 13-4-90 and his successor Sri M.Rajender heard the arguments and pronounced the judgment Since under Section 16-A of P.F.A.Act all the offences under Section 161 of P.F.A.Act shall be tried in summary way by Judl. 1st Class Magistrate and in accordence with Sections 262 to 265 of Cr.P.C. the offence with which the petitioners are charged has been tried summerily and in accordance with Sections 262 to 265 Cr.P.C. The Magistrate who records the evidence shall pronounce the judgment in view of Section 326 (3), Cr.P.C. Failure of the said procedure would vitiate the entire trial.

(3.) Sub-section (3) of Section 326, Cr .P.C. dearly says that in cases of summary trials, the procedure contemplated under Section 326 (1), Cr.P.C. i.e., any succeeding Judge can complete the recording of evidence and pronouncement of Judgment, will not apply. In this case it is evident from the docket sheet of the case and other records that on 17-4-90 it is recorded by the Learned Magistrate "Accused present. As I am under orders of transfer the case is reopened. Post for arguments. Call on 2-5-90". The endorsement on the docket dt. 2-5-90 is "Accused called absent. Adjourned under Section317, Cr.P.C. Defence Counsel present. Call on 22-5-90 for arguments". The initials below this endorsement is that of another Magistrate. Subsequent docket entries show that the case has been adjourned from time to time and on 20-8-90 the Magistrate pronounced the judgment convicting and sentencing the accused. It is evident from the docket entries that Sri M. Rajender has succeeded Sri Krishnamohan Rao and he heard the arguments and pronounced the judgment. Therefore the Magistrates who recorded the evidence and who pronounced the judgment were two different Judicial Officers, which is prohibited under sub-section (3) of Section 326, Cr.P.C. since the case was tried as a summary trial in view of Section 16-A of P.F.A. Act. Hence, the jdugment cannot stand. This point is directly covered by the decision in Chandana Surya Rao vs. State, where Y.Bhaskara Rao, J. held