Fulchand Shankarji Shende vs Sandip Sukhdeo Thaokar

D.D. Sinha, J.—Heard Mr. Shashikant Borkar, learned Advocate for the applicant. None appears for the respondent though served.

Mr. Shashikant Borkar, learned Advocate for the applicant, submits that the inherent powers of this Court u/s 482 of the Criminal Procedure Code are invoked for quashing the impugned order dated 7.3.2007 passed by the J.M.F.C., Bhandara in Criminal Case No. 262/06. It is contended that the respondent/complainant filed a complaint before the Judicial Magistrate First Class under the provisions of Section 138 of the Negotiable Instruments Act. It is contended that the evidence of the complainant was recorded and he has also closed his evidence by filing Pursis dated 7.3.2007 before the Judicial Magistrate. It is contended that the evidence of the complainant was recorded by the predecessor of the Judicial Magistrate who has passed the impugned order dated 7.3.2007. It is contended that by the impugned order the Judicial Magistrate without giving any reasons ordered recording of fresh evidence of the complainant. It is contended that in absence of any reasons given by the Magistrate for ordering recording of fresh evidence of the complainant, the impugned order cannot be sustained in law in view of the provisions of Section 326 of the Criminal Procedure Code.

I have considered the contentions canvassed by the learned Counsel. Perused the impugned order as well as Pursis filed by the complainant and scrutinized the provisions of Section 326 of the Criminal Procedure Code.

The provisions of Section 326(1) contemplate that whenever any Judge or Magistrate after having heard and recorded the whole or any part of the evidence in an enquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate, such succeeding Magistrate or Judge may act on the basis of the evidence so recorded by his predecessor either in part or otherwise. The proviso to Section 326 further contemplates that if the succeeding Magistrate is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, he may resummon any such witness and after such further examination, cross examination and reexamination, if any, such witness shall be discharged.

It is no doubt true that the proviso to Section 326 empowers the Magistrate to resummon any witness whose evidence has already been recorded for further examination, cross examination and reexamination provided the Magistrate expresses his opinion by giving reasons to do so. Perusal of the impugned order shows that for ordering recording of fresh evidence of the complainant, which was already recorded by the predecessors of the present Magistrate (who has passed the impugned order and the Pursis of closure of evidence was filed by the complainant), no reasons are given by the Magistrate as to why the reexamination of the complainant is necessary except that the evidence of the complainant was recorded by the predecessor of the Magistrate, who has passed the impugned order.

As per Section 326(1), if the evidence is recorded by the predecessor of the Magistrate or Judge either in part or otherwise, he has to proceed further from that stage and does not have jurisdiction to order reexamination of such witness except as provided in the proviso to Section 326(1) which requires Magistrate to express the opinion by giving reasons as to why reexamination of such witness is necessary.

In the instant case, since the Magistrate has not given any reasons whatsoever why the reexamination of the complainant is necessary, hence, the impugned order in my view cannot be sustained in law.

For the reasons stated hereinabove, the impugned order dated 7.3.2007 is hereby quashed and set aside. The Magistrate is directed to proceed with the case from the stage evidence of the complainant is closed and decide it according to law.

The Criminal Application stands allowed. Rule is made absolute in above terms. No order as to costs.