Buddhi Sagar Tewari vs Shri Prakash Bhalotia and Another

M. Wahajuddin, J.—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 Code of Criminal Procedure on 4-8-1979. Thereafter an order was passed that the accused are gazetted officers and their file be sent to CJM for necessary orders. The CJM 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 u/s 202 Code of Criminal Procedure. He, however, did not record any statement in light of the aforesaid order and on the strength of the statements recorded in the court of Special Judicial Magistrate, he passed the impugned order dated 22-11-1979 summoning the applicant u/s 323 Indian Penal Code .

While a number of grounds were taken, two grounds were urged. The first ground urged was that the complaint was barred u/s 197 of the Code of Criminal Procedure, 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 my self because 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 CJM. The present Section 322 Code of Criminal Procedure corresponds to Section 346 of the old Code of Criminal Procedure and in the like manner, the present Section 326 Code of Criminal Procedure corresponds to Section 350 of the old Code of Criminal Procedure. 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 Code of Criminal Procedure on consideration that the case should be tried or committed for trial by some other Magistrate in the district including the CJM the statements recorded by the Magistrate before whom the case was pending 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 Code of Criminal Procedure, which enable a succeeding Magistrate to act on the evidence recorded by his predecessor, cannot be applicable, where action has been taken u/s 346 of the old Code of Criminal Procedure. This principle will hold good under the new Code also. Emphasis was laid upon Section 346(2) of the old Code of Criminal Procedure providing that the Magistrate to whom the case is submitted, 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 Code of Criminal Procedure is identical. It would no doubt appear that there is no provision in Section 326 of the new Code of Criminal Procedure corresponding to Section 350(2) of the old Code of Criminal Procedure, but that in itself would not effect any change in the legal position. The language of Section 326(1) of the new Code of Criminal Procedure is otherwise analogous to the language of Section 350 of the old Code of Criminal Procedure and in the like manner the language of present Section 322 Code of Criminal Procedure is analogous to the language of Section 346 of old Code of Criminal Procedure and the principles which were laid down under those sections of the old Code of Criminal Procedure would hold good under the new Code of Criminal Procedure 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 Code of Criminal Procedure (i. e. 322 of the new Code of Criminal Procedure), it would be a case of de novo trial. Jagat Raj and Others Vs. The State, and Panna Lal and Others Vs. State, are authorities for the point. In fact transfer of cases under the provisions of Section 322 of the new Code of Criminal Procedure corresponding to Section 346 of the old Code of Criminal Procedure are not routine transfers. They are transfers because the Magistrate 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 novo. It has been interpreted in the aforesaid rulings that the expression ''trial'' would mean trial de novo and Section 350(1) of the old Code of Criminal Procedure corresponding to Section 326 of the new Code of Criminal Procedure would not be attracted. The expression ''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 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 u/s 482 Code of Criminal Procedure to the extent that the impugned order dated 22-11-1979 is set aside and quashed and the Magistrate is directed to proceed afresh from the stage of recording of statement under Sections 200 and 202 Code of Criminal Procedure and then to proceed in accordance with law and decide whether the accused persons should be summoned.