$~79

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 5th December, 2023

+ CRL.M.C. 42/2023 & CRL.M.A. 142/2023(stay)

SHANKAR @ GORI SHANKAR ….. Petitioner

Through: Mr. Rajat Wadhwa, Ms. Dhreti Bhatia
and Mr. Gurpreet Singh Gill,
Advocates.

Versus

STATE OF NCT OF DELHI & ANR. ….. Respondents

Through: Mr. Shoaib Haider, APP for State.
Ms. Rachna Jaiswal, Mr. Akshay
Kumar and Mr. Sandeep Nain,
Advocates for R-2 along with R-2 in
person.
SI Jitender Singh, PS Inderpuri.

CORAM:
HON’BLE MR. JUSTICE AMIT BANSAL

JUDGMENT

AMIT BANSAL, J. (ORAL)

1. The present petition has been filed impugning the order dated 22nd
November, 2022, passed by the learned Additional Sessions Judge (ASJ),
Patiala House Courts, New Delhi, whereby it has been held that a de novo
trial is not required to be started when the matter is committed by the Court
of Magistrate to the Court of Session.
2. The present petition raises an important question of law i.e., whether a

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Digitally Signed By:DINESH
KUMAR
Signing Date:11.12.2023
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de novo trial is required to be conducted when a case is committed by the
Court of Magistrate to the Court of Session in terms of Section 323 of the
Code of Criminal Procedure, 1973 (CrPC).
3. Brief facts leading to the filing of the present petition are as follows:
3.1 The respondent no.2 (complainant) had filed FIR No.119/2003 dated
17th June, 2003 under Sections 341/323/506/34 of the Indian Penal Code,
1860 (IPC) at Police Station Inder Puri. After completion of investigation,
charge sheet was filed under Sections 341/323/308/506/34 of the IPC on 31st
December, 2003.
3.2 The learned Metropolitan Magistrate (MM) vide order on charge
dated 16th April, 2005, framed charges for the offences under Sections
323/341/326/506/34 of the IPC, which are all triable by the Court of
Magistrate.
3.3 During the course of trial, the learned MM examined 10 witnesses.
After this, the complainant filed an application under Section 323 of the
CrPC seeking committal of the case to the Court of Session on the ground
that the accused persons were also liable to be prosecuted under Section 307
of the IPC, which is exclusively triable by the Court of Session. This
application was dismissed by the learned MM vide order dated 4th July,
2014.
3.4 A revision petition was filed by the complainant challenging the
aforesaid order dated 4th July, 2014, passed by the learned MM, which was
allowed by the learned ASJ vide order dated 3rd September, 2015, setting
aside the aforesaid order by observing that an offence under Section 307 of
the IPC has been made out. Consequently, the learned MM vide order 15th
October, 2015 committed the case to the Sessions Court.
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KUMAR
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3.5 The learned ASJ vide order dated 19th April, 2016 framed charges for
the offences under Sections 307/341/323/326 read with Sections 506-II/34
of the IPC.
3.6 Thereafter, trial commenced before the Sessions Court and three
prosecution witnesses were examined, cross-examined and discharged.
3.7 Subsequently, vide order dated 22nd November, 2022, the learned ASJ
ordered that a fresh de novo trial is not to be started, especially when all the
witnesses have been examined by the learned MM.
4. Hence, the present petition has been filed by the petitioner accused
challenging the order dated 22nd November, 2022, passed by the learned
ASJ.
5. Counsel for the petitioner submits that in the present case, charges
have been framed by the learned Sessions Court vide order dated 19th April,
2016 and subsequent thereto, three prosecution witnesses have been
examined by the learned ASJ. He further submits that it will cause
procedural confusion and prejudice if the evidence recorded before the
learned MM is read in the present case. In this regard, reliance is placed on
the following judgments:
i. Sudhir v. State of M.P., (2001) 2 SCC 688.
ii. Judgment dated 30th April, 2020 passed by the Madras High Court in
Crl.R.C. No.952 of 2020 titled Dr. G.Ilangovan v. Gokul @
Gokulakrishnan.
iii. Mahmood Hasan v. State of Haryana, 2019 SCC OnLine P&H
7637.
6. Learned APP appearing for the State supports the case of the
petitioner.
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KUMAR
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7. Per contra, counsel appearing for the respondent no.2/complainant
submits that there is no infirmity in the order passed by the learned ASJ. It is
further stated that since the incident in the present case happened as far back
in 2003, a de novo trial would only cause delay and cause prejudice to the
complainant. He places reliance on the provisions of Section 326 of the
CrPC in this regard.
8. Both parties have filed written submissions along with judgments in
support.
9. I have heard the counsels for the parties and perused the material on
record.
10. At the outset, reference may be made to the provisions of Sections
323 and 326 of the CrPC which are set out below:
“323. Procedure when, after commencement of inquiry or trial,
Magistrate finds case should be committed.—If, in any inquiry
into an offence or a trial before a Magistrate, it appears to him
at any stage of the proceedings before signing the judgment
that the case is one which ought to be tried by the Court of
Session, he shall commit it to that Court under the provisions
hereinbefore contained and thereupon the provisions of
Chapter XVIII shall apply to the commitment so made.
…

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 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:
Provided that if the succeeding Judge or Magistrate is of

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Digitally Signed By:DINESH
KUMAR
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 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.”

11. In Sudhir (supra), the Supreme Court observed that once a matter has
been committed by the Court of Magistrate to the Court of Session under
Section 323 of the CrPC, the provisions of Chapter XVIII of the CrPC
would be applicable.
12. In Dr. G.Ilangovan (supra), the Madras High Court considered the
scope of Sections 323 and 326 of the CrPC in a situation where 13 witnesses
had been already examined before the Magistrate committed the trial to the
Sessions Court. The Madras High Court held that once the case has been
committed to the Sessions Court, the Sessions Court would have to proceed
as per the provisions of Chapter XVIII of the CrPC and in such a case,
provisions of Section 326 of the CrPC would not apply. The relevant
observations are set out below:
“13. A reading of Sections 323 of Cr.P.C clearly shows that if
any enquiry into an offence or a trial before the learned
Magistrate, it appears to him at any stage of the proceedings
before signing judgment that the case is one which ought to be
tried by the Court of Session, he shall commit it to that Court
under the provisions therein. Thereupon provisions of Chapter
XVIII of Cr.P.C shall apply to the committal so made. Chapter
XVIII of Cr.P.C. starts from Section 225 Cr.P.C to 237 Cr.P.C.
Therefore, any Magistrate or Metropolitan Magistrate cannot
be equated with the Sessions Judge and language employed is
committal. Though the abovesaid provisions says that if the
case is triable by the Sessions Judge, the case has to be
committed by the Magistrate. The Magistrate includes Chief
Metropolitan Magistrate and Chief Judicial Magistrate. Once

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Digitally Signed By:DINESH
KUMAR
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 the case is committed, the committal Court (Sessions Court)
follows the procedure as contemplated under Sections 225 to
237 Cr.P.C.
xxx xxx xxx
18. The language employed in both Sections 323 and 326
Cr.P.C., is very clear. In this case, since Chief Metropolitan
Magistrate has no jurisdiction to try as he has got power only
to pass sentence for a term upto 7 years, he has committed the
case to Court of Session. Therefore, once the case is
committed to Sessions Court, as per section 323 Cr.P.C.,
provisions of Chapter XVIII has to be followed. In such view
of the matter, the Chief Metropolitan Magistrate cannot be
treated as Predecessor of the Sessions Court and the Sessions
Court cannot be stated as Successor of Chief Metropolitan
Magistrate. As per Section 323 Cr.P.C., the procedure when
after commencement of inquiry or trial, if the Magistrate finds
case should be committed, if any inquiry into an offence or a
trial before a Magistrate, it appears to him at any stage of the
proceedings before signing judgment that the case is one
which ought to be tried by the Court of Session, he shall
commit it to that Court and thereupon provisions of Chapter
XVIII shall apply. Therefore, Section 326 Cr.P.C., regarding
evidence partly recorded by one Judge or Magistrate and
partly by another cannot be applied herein.”

13. The SLP against the aforesaid judgment was dismissed by the
Supreme Court vide order dated 18th April, 2022.
14. A similar view was taken by the Punjab and Haryana High Court in
Mahmood Hasan (supra). The relevant observations of the said judgment
are set out below:
“16. In fact, it was neither appropriate nor proper for the learned
Magistrate to pass order under Section 319 of the Code
summoning the petitioners as additional accused, once the
Court had reached at a conclusion that the case is one which
ought to be tried by the Court of Sessions, it should have

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KUMAR
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 committed the case to the Court of Sessions. Before the Court
of Sessions, the trial has to start de novo in accordance with
the procedure prescribed under Chapter XVIII of “the Code”.
17. This matter can be examined from another angle. Whatever
evidence has been led before the Court of Judicial Magistrate,
would not be read as evidence while deciding the case by the
Court of Sessions. The Court of Sessions is obligated upon to
follow the procedure as provided in Chapter XVIII of “the
Code” which requires framing of charge and thereafter
proceeding to record evidence of the prosecution in case the
accused does not plead guilty. The Court of Sessions also has a
power to remit the case back to the Magistrate after finding that
the case does not involve the offence which is exclusively triable
by the Court of Sessions. If the Court of Sessions agrees with
the committing Magistrate, first the charge has to be framed
and thereafter the evidence has to be led de-novo. Therefore,
once the Magistrate found that the case is exclusively triable by
the Court of Sessions, he should have left it to the Court of
Sessions to proceed in accordance with law.”

15. Punjab and Haryana High Court has categorically held that if the
Court of Session agrees with the committing Magistrate, then the trial has to
be started de novo in accordance with the procedure prescribed under
Chapter XVIII of the CrPC and first the charge has to be framed and
thereafter, evidence has to be led de novo.
16. Vires of Section 323 of the CrPC was challenged before the Division
Bench of the Madhya Pradesh High Court in Raju v. Union of India,
MANU/MP/0436/2000 and one of the grounds taken was that if the trial is
complete before the Magistrate before committal to the Court of Session, the
accused would have to face trial de novo before the Court of Session which
would violate the right to speedy trial of the accused in terms of Section 21
of the Constitution of India. The Division Bench of the Madhya Pradesh

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KUMAR
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High Court rejected the aforesaid challenge by making the following
observations:
“9. The provision of Section 323 Cr.P.C. does not adversely
affect the right of speedy trial, but, it goes to the very root of the
trial where the case should be tried. If a case is not triable or
ought not to be tried by Magistrate and during the course of
enquiry he comes to such a conclusion, he obviously refers the
case to the Competent Court as offence cannot be allowed to go
unpunished, is also underlining principle of public policy
under Section 323 Cr.P.C. The power of a Magistrate under
Section 323 Cr.P.C. is in addition to his power under Section
209 of the Code to commit cases exclusively triable by the Court
of Sessions to that Court. The provisions contained in Section
244 Cr.P.C. cannot take away the powers vested in the
Magistrate under Section 323 to commit the case to the Court of
Sessions at any stage of the proceedings before signing the
judgment provided the case is one which ought to be tried by the
Court of Sessions. Merely because a case has been instituted
otherwise then on a police report, cannot take away the power
vested in Magistrate under Section 323 Cr.P.C. to commit the
case to the Court of Sessions at any stage of the proceedings.
Whether that course should have been adopted in the instant
case? The question on merits of case which has also attained
finality and that does not affect the validity of the provisions
contained in Section 323 Cr.P.C.”

17. I am in respectful agreement with the aforesaid views taken by the

High Courts of Madras, Punjab and Haryana and Madhya Pradesh. The
mandate of Section 323 of the CrPC is clear. When a case is committed by
the Magistrate to the Court of Session, the trial would have to begin de novo.
The Court of Session would first frame charges and then proceed with the
examination of the witnesses.
18. When a case is committed by the Court of Magistrate to the Court of
Session, the Magistrate becomes functus officio and any evidence recorded
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KUMAR
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therein cannot be held to be admissible for the purposes of a de novo trial
before the committal Court. Therefore, the evidence would also have to be
recorded de novo.
19. Section 326 of the CrPC covers cases wherein a Magistrate/Judge has
been succeeded by another Magistrate/Judge and such successor can act on
the evidence recorded by his predecessor. However, as correctly observed
by the Madras High Court in Dr. G. Ilangovan (supra), the Sessions Court
cannot be treated as a successor of the Magistrate. Therefore, Section 326 of
the CrPC would not be applicable to the present case.
20. With regard to the submission on behalf the complainant that a de
novo trial would cause prejudice to the complainant on account of delay, it is
pertinent to note that it was the complainant who moved the application for
committal before the learned MM, which was rejected vide order dated 4th
July, 2014. Thereafter, the complainant preferred a revision against the
aforesaid order, which was allowed and consequent thereto, the learned MM
committed the case to the Sessions Court. In view thereof, the aforesaid
submission cannot be accepted.
21. In view of the above, the present petition is allowed and the impugned
order dated 22nd November, 2022 passed by the learned ASJ is set aside and
it is directed that the trial shall proceed before the Court of Session from the
stage it was before the impugned order was passed.
22. Counsel for the complainant submits that since one of the witnesses,
PW-1 Kishore Kumar has since expired, therefore, his evidence cannot be
recorded de novo. In terms of Section 33 of the Indian Evidence Act, 1872,
evidence given by a witness in a judicial proceeding can be considered
relevant in a subsequent judicial proceeding in case the witness has since
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KUMAR
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expired. In view thereof, it is directed that the evidence of PW-1 recorded
before the Court of Magistrate shall be read in evidence before the Sessions
Court.
23. However, taking note of the fact that the present FIR was registered in
the year 2003, the learned ASJ is requested to expeditiously complete the
trial in the present case, preferably within a period of six months from the
date fixed.
24. Counsels for the parties assure the Court that they shall not take any
unnecessary adjournments.
25. The present petition, along with all pending applications, stands
disposed of.

AMIT BANSAL, J.
DECEMBER 5, 2023
At

Signature Not Verified

Digitally Signed By:DINESH
KUMAR
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