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PETITIONER: BHASKAR @ PRABASKAR AND ORS.

       Vs.

RESPONDENT: INSPECTOR OF POLICE,VELLORE TALUK POLICE STATION, VELLORE

DATE OF JUDGMENT:       22/09/1999

BENCH: K.T.Thomas, M.B.Shah

JUDGMENT:

     THOMAS, J.

     Leave granted.

     This  is typical of procrastination of an already long drawn  trial.  But the irony is that this is at the instance of  the  accused  who  should have  normally  complained  of prolongation of his agony in facing the ordeal of a criminal prosecution.   At one level almost fifty witnesses have been examined  by the prosecution, but when there was a change of venue  of  the  trial the accused demanded  that  the  whole exercise  should of repeated de novo.  However, the court to which  he  applied for such de novo trial spurned  down  his request  and  proposed to proceed from where  the  erstwhile forum  arrived  at with the trial of the case.  The  accused then  approached  the  High Court for a direction  that  the trial  should be conducted afresh over again but he did  not succeed  in  the  High Court as a Single Judge  declined  to reverse  the progress of the trial thus far attained.   This appeal  is  at the instance of the accused.   After  hearing learned  counsel  for  the  appellant we did  not  feel  the necessity  to  call upon the respondent State to answer  the grounds taken up by the appellant.  Hence we dispose of this appeal on merits against the appellant.

     Appellant  was challanned before a Designated Court at Madras  (now  Chennai)  which   was  constituted  under  the Terrorist  and  Disruptive Activities (Prevention) Act  1987 (‘TADA’  for  short).   The Judge of  the  Designated  Court framed the charge against him for offences under Section 302 read  with Section 120B IPC and Section 4 of the Tamil  Nadu Public  Property (Prevention of Damage and Loss) Act,  1992, besides  Sections  3 and 5 of TADA.  During the progress  of the  trial  the  appellant  was  released  on  bail  and  he continues  to  be at large on the strength of the said  bail order.

     When  the period of TADA expired by efflux of time the Public Prosecutor seems to have withdrawn the offences under TADA  from  the  present prosecution.  More than  that,  the Designated Courts under TADA in the State of Tamil Nadu were closed  down  after the expiry of the said period,  although such courts could still have continued to function by virtue of Section 1(4) of TADA.

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     Be  that as it may, in the meanwhile, the present case was  made  over to the court of Additional  Sessions  Judge, Vellore  (Tamil  Nadu) as per an order dated 31.12.1996  for trial  of  the remaining offences.  The said Sessions  Court then  proposed  to proceed with the trial from the stage  at which the Designated Court had ceased to function by keeping the evidence already recorded before the Designated Court as duly  recorded evidence in the case.  Appellant objected  to the  aforesaid course and demanded a de novo trial.  But the learned  Sessions Judge over-ruled the objections raised  by the  appellant as per a reasoned order pronounced by him  on 30.7.1998.   Appellant  persisted  with   his  objection  by approaching  the High Court under Section 482 of the Code of Criminal  Procedure (for short ‘the Code’) which ended up in the impugned order.

     Learned  Single Judge of the High Court found that the trial  court is not obliged to hold a de novo trial in  view of  Section 326 of the Code.  Appellants contended that  the trial under TADA is materially different from a trial in the Sessions Court particularly in view of the narrower scope of admissibility of evidence in the Sessions Court.  He further contended that there is no provision for de novo trial under TADA  and hence a resort to Section 326 of the Code for  the purpose   of   securing   continuity   in   the   trial   is impermissible.

     Appellant  relied  on  the decision of this  Court  in Niranjan  Singh  Karam Singh Punjabi vs.   Jitendra  Bhimraj Bijja  (AIR  1990  SC 1962) to buttress up  his  contention. When  a  Designated  Court took the view that  the  offences involved  in  that case were not triable by it it  was  held that the course then open was to transfer the case for trial to  the court having jurisdiction under the Code as provided in Section 18 of the TADA.  Learned Single Judge of the High Court  did  not  find  any   use  to  countenance  the  said contention  on  the premise that the question  now  involved would not fall under Section 18 of TADA.

     The  position which developed in the present case  was on  account of abolition of the Designated Court established under  TADA.  No offence defined under that Act can be tried by  any  other  court.  Section 18 of TADA is only  for  the limited  purpose of enabling a Designated Court to  transfer the  case  for  trial to another court  having  jurisdiction under  the  Code to proceed with the trial in  a  particular situation.  Section 18 of TADA is extracted below:

     "18.   Power  to  transfer cases to  regular  Courts.- Where,  after taking cognizance of any offence, a Designated Court  is of opinion that the offence is not triable by  it, it shall, notwithstanding that it has no jurisdiction to try such  offence,  transfer  the  case for the  trial  of  such offence  to any Court having jurisdiction under the Code and the  Court to which the case is transferred may proceed with the  trial  of the offence as if it had taken cognizance  of the offence."

     It is clear from the aforesaid provision that when the Designated   Court  forms  an  opinion,   that  it  has   no jurisdiction to try any of the offences involved in the case then  that  case  shall be transferred to the  court  having jurisdiction  under  the Code although the Designated  Court had  already  taken  cognizance  of  the  offences.   It  is

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pertinent  to note from Section 18 that once the case is  so transferred  then  the  transferee court has  the  power  to proceed with the trial "as if it had taken cognizance of the offence".   In  other words, the transferee court can  start from the stage upto which the Designated court proceeded.

     Even  so  Section  18 of TADA would not arise  in  the present  case because the Designated Court itself has ceased to  exist  during  the  progress of  the  trial.   In  fact, appellant  can  heave a sigh of relief at least for  getting extricated  from  the  clutches of the offences  under  TADA because of the disappearance of Designated Courts under TADA in the State of Tamil Nadu to try such offences.

     No doubt normally offences under Sections 302 and 120B of  the  IPC  etc.   are triable by Court  of  Sessions.   A Designated  Court  established  under TADA  could  try  such offences only on the strength of a charge framed against the appellant for those offences along with offences under TADA. Under  Section 12 of TADA, all Designated Courts can try any other  offence also, while trying any offence under TADA  if such other offence is also triable in the same case together with  the  offence under TADA.  But a Sessions Court  cannot try an offence under TADA even in conjunction with other non TADA offences.  Section 12(1) of TADA reads thus:

     "When  trying any offence, a Designated Court may also try  any other offence with which the accused may, under the Code,  be  charged  at  the same trial  if  the  offence  is connected with such other offence."

     So  the fall out of non-existence or cessation of  the existence  of  a Designated Court is that no  offence  under TADA  can  be  tried against any accused.   But  what  would happen  to the offences not falling under TADA, which  could be  tried  in regular Sessions Court?  The answer is  simple that the case then must go for trial to a regular court.

     It  is  in the above context that Section 326  of  the Code has to be read.  That section is extracted below:

     "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 recorded  the  whole  or  any part of the  evidence  in  any 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.  (2) When a case is transferred under the provisions of this Code from one  Judge or from one Magistrate to another Magistrate, the former  shall  be deemed to cease to  exercise  jurisdiction therein,  and  to  be succeeded by the  latter,  within  the meaning  of  sub- section (1).  (3) Nothing in this  section applies  to summary trials or to cases in which  proceedings have  been stayed under section 322 or in which  proceedings have  been submitted to a superior Magistrate under  section

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325."

     The  section, as it originally remained, was meant  to apply only to cases before courts of Magistrates.  By Act 45 of  1978 the words "Judge or" were also inserted just before the   word   "Magistrate".   So   from  1978   onwards   the applicability  of  the  section was extended  to  all  trial courts.  The earlier position was that a Judge or Magistrate who  heard the evidence alone could decide the case.   Later any  successor  Magistrate was conferred with the option  to act  on the evidence recorded by his predecessor  Magistrate in  the same case.  Now that option is extended to Judges of all trial courts also.

     For  the application of Section 326 of the Code  three postulates must be concatenated together.  First is, a Judge should have recorded the evidence in the case either in part or  in whole.  Next is, the said Judge should have ceased to exercise  jurisdiction  in  that  case, and  the  third  is, another  Judge should have succeeded him and such  successor Judge  must have jurisdiction to try the offences concerned. If  the  above conditions are completed the successor  Judge stands  empowered to act on the evidence already recorded in the case.

     The  legislative intention is clear from a reading  of the section that the words "succeeded by another Judge" must get  a  wide  amplitude.  It is for the  said  purpose  that sub-section   (2)  is  incorporated   bringing  even   cases transferred  from one Judge to another, within the scope  of the  Section.   The  words "such jurisdiction" in  the  sub- section (1) are not intended to narrow down the ambit of the provision  to  Judges who could have exercised  exactly  the same jurisdiction which his predecessor Judge exercised.  It is  enough that the successor judge has jurisdiction to  try the offences sought to be proved against the accused.

     The  archaic  concept was that the very same  judicial personage  who  heard and recorded the evidence must  decide the  case.  That concept was in vogue for a long time.   But over   the   years  it  was   revealed  in   practice   that fossilisation  of the said concept, instead of fostering the administration  of criminal justice, was doing the  reverse. Very  occasionally judicial officer of one court was changed and was replaced by another.  As evidence had to be recorded afresh  by  the new officer under the old system,  witnesses who  were  already  examined  in the cases at  the  cost  of considerable  strain and expenses - not only to them but  to the  exchequer  -  were re-summoned  and  re-examined.   The litigation  cost  thereby inflicted on the parties  used  to soar  up.  The process would have to be repeated over  again if   such   next  judicial   personage  also  was   changed. Eventually  it  was  learnt  that the object  sought  to  be achieved  by  such  repetitions,   when  compared  with  the enormous  cost and trouble, was not of much utility.   Hence the  legislature  wanted to discontinue the aforesaid  ante- diluvian  practice  and  decided  to afford  option  to  the successor  judicial  officer.   Legislature  conferred  such option  only to the magistrates at the first instance and at the  same  time empowered them to re-examine  the  witnesses already  examined if they considered such a course necessary for  the interest of justice.  As the new experiment  showed positive  results  towards fostering the cause  of  criminal justice  the  Law  Commission recommended that  such  option should  advisedly  be extended to judges of all other  trial

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courts also.

     The  Law  Commission  in its 41st  Report  recommended thus:   "It is obviously desirable that in serious cases the whole  evidence  should  be heard by the Judge  who  finally decides  the case.  However, having regard to the  realities of the situation, it is necessary to make some provision for cases  where  such  transfers  do   take  place,  because  a mandatory  provision  for  a de novo trial may  often  cause considerable  inconvenience  and hardship.   We,  therefore, propose  to extend the section to Judges of Sessions  Courts by   referring   to  ‘Judge  or   Magistrate’   instead   of ‘Magistrate’ only."

     The aforesaid recommendation was later accepted by the Government  and  was  finally  approved  by  the  Parliament through Section 27 of Act 45 of 1978.

     In  this context it is to be borne in mind that only a Sessions Judge could be appointed as Judge of the Designated Court  under  TADA.  This can be seen from Section  9(6)  of TADA which reads thus:

     "A  person shall not be qualified for appointment as a judge or an additional judge of a Designated Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge in any State."

     His  appointment  can be made by the  Government  only with the concurrence of the Chief Justice of the High Court. Section 14 of TADA which deals with the procedural powers of the  Designated  Court  stipulated in sub-section  (3)  that "subject  to the other provisions of this Act, a  Designated Court  shall, for the purpose of trial of any offence,  have all  the  powers  of a Court of Session and shall  try  such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session."

     Thus  the Judge of the Designated Court is in effect a Sessions Judge, his powers are those of a Sessions Judge and the  procedure  to  be followed by him is that  of  a  trial before  a  Court of Sessions.  In such a situation when  the Judge  of  Designated Court ceased to have  jurisdiction  on account  of  abolition of that court, the Sessions Judge  to whom  the  case  is transferred for trial  of  the  offences charged (after dropping out the offences under TADA) must be regarded  as a successor Judge.  It is immaterial that  such successor  Judge cannot try the offences under TADA or  that in  the  trial  before a Designated Court certain  items  of materials  could be admitted as evidence which could not get such admission in the trial before regular criminal courts.

     A  contrary  interpretation would lead to  unwholesome repetition  of  the entire exercise  involving  considerable cost  to the exchequer, financial strain to the accused  and waste  of  time of the courts.  Greater than all  those,  it would inflict untold inconveniences to the witnesses who are the  innocent parties in the case.  The court cannot  afford to  be  oblivious to the reality that no witness is, on  his own  volition, desirous of going to the court for  remaining there  until  his turn is called to mount the witness  stand and  to undergo the agony of facing grueling questions.   He does  it  as  he has no other option when  summoned  by  the court.   Most of the witnesses can attend the courts only by

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bearing with all the inconveniences to themselves and at the cost  of loss of their valuable time.  When any witness  had already  undergone  such agony once in connection  with  the same  case, no effort to save him from undergoing that agony once  again for the very same case should be spared,  unless such  re-summoning is absolutely necessary to meet the  ends of justice.

     On  the contrary, no prejudice would be caused to  the accused as he can invoke the powers envisaged in the proviso to  sub-section  (1)  of Section 326 of the  Code.   If  the successor  Judge  is of opinion that further examination  of any  witness,  whose evidence has already been  recorded  is necessary  in  the interest of justice, the Judge would  re- summon  such  witness  either  for  further  examination  or further  cross-examination and re-examination.  When such  a course  is  permitted  by  law  there  can  be  no  possible grievance  for the accused that prejudice would be caused to him if the evidence already on record is treated as evidence in the case.

     We  therefore concur with the conclusion arrived at by the  trial  court  which has been confirmed by  the  learned Single  of  the  High  Court.  This  appeal  is  accordingly dismissed.