Legal provisions regarding decision on evidence partly recorded by one Judge or Magistrate and partly by another under section 326 of the Code of Criminal Procedure, 1973.
The Judge or Magistrate who hears entire evidence should give the decision. A departure from this principle has been permitted by Section 326 of the Code apparently on grounds of expediency. According to Section 326(1) of the Code, whenever any Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in any enquiry 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.
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ADVERTISEMENTS:
However, 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 interest 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 the Code of Criminal Procedure from one Judge to another 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 Section 326 of the Code 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 325.
Double Jeopardy—Complaint under Section 138, N.I. Act and Section 420, I.P.C.:
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Where accused was summoned only under Section 138, N.I. Act. Said complaint was dismissed for want of prosecution which amounted to acquittal. Held, that second complaint under Section 420, I.P.C. was not maintainable on the same cause of action.
No material on which trial Judge could even thought it fit to hold the trial in camera:
Prosecution case was that huge mob had killed 11 persons from minority community in most barbaric manner. Four eyewitnesses, including two injured persons, examined before the Court had turned hostile. Said witnesses though were closely related to deceased, but all of them had denied to make any statement before Police under Section 161.
High Court observed that as not even a remote idea would come either in mind of Public Prosecutor or trial Judge that witnesses were not deposing truth because of threat given to them, hence there was no material on which trial Judge could have been thought it fit to hold the trial in camera.