The appellant, original complainant, has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgement and order of acquittal passed by learned Judicial Magistrate First Class, Junagadh, on 28.3.2008 in Criminal Case No. 4796 of 1992 acquitting the respondent accused for the offence under Section 7(1) and Section 16 of the Prevention of Food Adulteration Act, 1954 (“the Act” for short). 2. According to the prosecution case, the accused was running business in the name of Kanti Masala Gruh Udyog. On 18.2.1992 at about 7 O'clock in the evening the complainant purchased chilly powder (loose) from the accused for sending it to the public analyst. The chilly powder purchased was sent for analysis to the public analyst, Bhuj and report was received indicating that the chilly powder was adulterated. Therefore, after obtaining sanction, prosecution was launched against the accused.
3. After trial, the trial Court by the impugned judgement acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
4. I have heard learned advocate Ms. Meghna Patel for learned advocate Mr. Dagli for the appellant and learned advocate Mr. Param R. Buch for learned advocate Mr. Hriday Buch for the respondent accused at length and in great detail. I have also perused the impugned judgement and record and proceedings of the trial Court.
5. Learned advocate Ms. Patel submitted that under the provisions of the Act, trial is to be conducted in summary manner. In the present case the trial was conducted in summary manner but learned Magistrate who delivered the judgement relied on the evidence recorded by his predecessor and therefore trial is vitiated and hence the impugned judgement is required to be set aside and the case is required to be remanded for retrial. She relied on the decision in the case of NITINBHAI SAEVATILAL SHAH VS. MANUBHAI MANJIBHAI PANCHAL reported in AIR 2011 SC 3076.
6. Learned advocate Mr. Buch did not dispute this fact that learned Magistrate who delivered the judgement did not record the evidence or part of the evidence but he submitted that this contention was not taken in the trial Court and therefore the appellant cannot take this contention in the appeal and therefore the appeal is required to be dismissed.
7. It appears from the record and proceedings that evidence was recorded by learned Chief Judicial Magistrate, Junagadh and the decision was rendered by learned Judicial Magistrate First Class, Junagadh. Therefore, it is clear that the Magistrate who delivered the judgement did not record the evidence but relied on the evidence recorded by his predecessor.
8. Under Section 16(A) of the Act all offences under sub-section (1) of Section 16 of the Act shall be tried in summary way by a Judicial Magistrate First Class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and provisions of Sections 262 to 265 of the Code shall, as far as may be, apply to such trial. It is further provided that when at the commencement of or in the course of summary trial, it appears to the Magistrate that the nature of case is such that sentence of imprisonment for a term exceeding one year may have to be passed or that it is for any other reason undesirable to try the case summarily, the Magistrate shall after hearing the parties, record and order to that effect and thereafter recall any witness who may have been examined and proceeded to hear or re-hear the case in the manner provided by Criminal Procedure Code, 1973. In the present case, it is not in dispute that the case was tried in a summary manner. On perusal of record and proceedings of the trial Court, it appears that learned Magistrate tried the case as summary trial and learned Magistrate who delivered the judgement did not record the evidence but relied on the evidence recorded by his predecessor.
9. In the decision of NITINBHAI SAEVATILAL SHAH VS. MANUBHAI MANJIBHAI PANCHAL (supra), Hon'ble Supreme Court has observed as under:
“para 14 – The mandatory language in which Section 326(3) is couched, leave no manner of doubt that when a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. In summary proceedings, the successor Judge has no authority to proceed with the trial from a stage at which his predecessor has left it. The reason why the provisions of sub-sections (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only substance of evidence has to be recorded. The Court does not record the entire statement of witnesses. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on the basis of evidence recorded by his predecessor. Section 326(3) of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice”.
10. In view of the law laid down by Hon'ble Supreme Copurt, when a case is tried as summary case, a Magistrate who succeeds the Magistrate who had recorded the evidence, cannot act on the evidence so recorded by his predecessor as only substance of evidence has to be recorded in summary trial. Therefore, the successor Magistrate would not be in a position to appreciate the evidence led before his predecessor. The successor Magistrate would not be in a position to decide the matter effectively and do substantial justice; relying upon the evidence recorded by predecessor Magistrate would cause serious prejudice to a party against whom order is passed. In the present case as observed earlier, learned Magistrate delivered the judgement relying on the evidence recorded by his predecessor. Therefore, he was not in a position to appreciate the evidence properly and do substantial justice. Therefore, serious prejudice is caused to the complainant as order of acquittal was passed. Therefore, the impugned judgement is required to be set aside and the case is required to be remanded to the trial Court for retrial in accordance with law.
11. As regards the contention that the appellant cannot take the contention of summary trial in the appeal, in the decision of STATE OF GUJARAT VS. KESHAVLAL KALIDAS PATEL & ANOTHER reported in 1981 Cri. L.J. 551 this Court has taken a view that a point of law can be raised at appellate stage even for the first time. Hence this contention cannot be accepted.
12. In the result, the appeal is allowed. The impugned judgement dated 28.3.2008 passed by learned Judicial Magistrate First Class, Junagadh, in Criminal Case No. 4796 of 1992 is set aside and the matter is remanded to the trial Court for fresh trial in accordance with law after giving opportunity to the parties. The parties are directed to appear before the trial Court on 23.4.2012. If the accused fails to appear as directed by this Court, the trial Court is at liberty to take appropriate action to secure their presence.
Record and proceedings be sent back to the trial Court forthwith.
(BANKIM N. MEHTA, J) (pkn)