138 ni act
Querist :
Anonymous
(Querist) 24 December 2011
This query is : Resolved
this is not a query. rather some info on recent judgement of sc in case titled nitinbhai saevatilal shah v/s manubhai manjibhai decided on 1/9/2011. this judgement is being blanketly applied by trial courts thorughout the india to order de novo trials in 138 matters even when same is not required. the judgement reinforces s.326(3)CrPC which talks of non reliance of evidence in summary trials by subsequent magistrates when previous one is transferred. this judgement is only applicable to cases where substance of evidence has been recorded as per summary procedure( refer to para 13 of judgement.
THE JUDGEMENT DOESNT APPLY TO CASES where even though summary trial is held but full fledged verbatim statements evidence of witnesses is recorded. refer to shivaji sampat jagtap v/s rajan hiralal arora 2007 CrLJ 122..........i am providing this info because the aforesaid sc judgement is being applied blanketly applied even where it is not applicable to the detriment of complainants in 138 cases whose cases are on maturity by ordering denovo trial which will not only result in failure of justice and also double pendency of 138 cases.
V R SHROFF
(Expert) 24 December 2011
Thanks 4 information.
Sailesh Kumar Shah
(Expert) 24 December 2011
I feel that you have to post in 'Judiciary' Section of this site.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 24 December 2011
Please read the judgement carefully again., it is mandatory DE NOVO trial for all summons criminal cases.
Complainants may not be happy but rights of defense have to be protected.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 24 December 2011
EXPERTS FROM ABOVE JUDGEMENT OF SC.
From the language of Section 326(3) of the Code, it is
plain that the provisions of Section 326(1) and 326(2) of the
new Code are not applicable to summary trial. Therefore,
except in regard to those cases which fall within the ambit of
Section 326 of the Code, the Magistrate cannot proceed with
the trial placing reliance on the evidence recorded by his
predecessor. He has got to try the case de novo.
A plain reading of this provision shows that the proceedings
held by a Magistrate, to the extent that he is not empowered
by law, would be void and void proceedings cannot be
validated
Querist :
Anonymous
(Querist) 25 December 2011
dear friend,
the sole purpose of denovo trial in summary case as envisaged u/326(3) is that it would be unworthy of subsequent magistrate to rely of the substance of evidence recorded by previous magistrate. but wherein whole fullfleged verbatim statements of witnessess are recorded, no de novo trial is required as it is safe for subsequent magistrate to rely upon that evidence. to understand the sc judgment rightly it is imperitive to read in background of facts it was passed. refer to para 13 of the judggement. also refer to para 18, 19 of bombay high court judgement mentioned above(uptill now not overruled) wherein 4 other state high court judgements have been relied to propose similar propositons.
Querist :
Anonymous
(Querist) 25 December 2011
Still the sc judgement is on different facts and point........and varoius high court judgements have neither been considered by it nor overruled...
prabhakar singh
(Expert) 25 December 2011
good job done keep it up but at proper place.
Guest
(Expert) 25 December 2011
But, what problem you want to solve by posting this information is not clear. Do you want mere confirmation of your own interpretation or something else?
Shonee Kapoor
(Expert) 26 December 2011
Agreed this is a law now.
What is the purpose of posting it here.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Devajyoti Barman
(Expert) 28 December 2011
Yes it is quite a rule to follow the supreme court decisions blindly.
