NITINBHAI SAEVATILAL SHAH & ANOTHER versus MANUBHAI MANJIBHAI PANCHAL & ANOTHER

Citation: [2011] 10 S.C.R. 804 · Decided: 01-09-2011 · Supreme Court of India · Bench: J.M. PANCHAL · Disposal: Disposed off

Judgment (excerpt)

A 
B 
[2011] 10 S.C.R. 804 
NITINBHAI SAEVATILAL SHAH & ANOTHER 
v. 
MANUBHAI MANJIBHAI PANCHAL & ANOTHER 
(Criminal Appeal No. 1703 of 2011) 
SEPTEMBER 1, 2011 
[J.M. PANCHAL AND H. L. GOKHALE, JJ.] 
Code of Criminal Procedure, 1973: 
c 
ss. 263 and 264 read with s.326(3) and s.461- Summary 
trial - Procedure in part-heard cases on transfer of the Judge/ 
Magistrate - HELD: In view of sub-s.(3) of s.326, sub s.(1) of . 
s.326 which authorizes a Magistrate to act on the evidence 
recorded by his predecessor, does not apply to summary trials 
0 - The prohibition contained in sub s. (3) of s 326 is absolute 
and. admits of no exception - In summary proceedings, the 
successor Judge or Magistrate has no authority to proceed 
with the trial from a stage at which his predecessor has left it 
because in summary trials only substance of evidence has 
to be recorded -
The court does not record the entire 
E statement of witness - s.326 (3) does not permit the 
Magistrate to act upon the substance of the evidence 
recorded by his predecessor - It is well settled that no amount 
of consent by the parties can confer jurisdiction where there 
exists none, on a court of law nor can they divest a court of 
F jurisdiction which it possesses under the law - The cardinal 
principle of law in criminal trial is that it is a right of an accused 
that his case should be decided by a Judge who has heard 
the whole of it - Therefore, except in regard to those cases 
which fall within the ambit of s. 326, the Magistrate cannot 
G proceed with the trial placing reliance on the evidence 
recorded by his predecessor - He has got to try the case de 
novo - In this view of the matter, the High Court should have 
ordered de novo trial - This is not a case of irregularity but 
want of competency - There has been no proper trial of the 
H 
804 
NITINBHAI SAEVATILAL SHAH & ANR. Ii. MANUBHAI 805 
MANJIBHAI PANCHAL & ANR. 
case and there should be one - The impugned judgment is 
A 
set aside and the matter remanded to Metropolitan Magistrate 
for retrial in accordance with law - Jurisdiction - Negotiable 
Instruments Act, 1881 - s. 138. 
ss. 461 and 465 -Void proceedings - Summary trial -
8 
Metropolitan Magistrate after recording evidence, transferred 
- His successor proceeded with the trial from the stage let in 
and convicted the accused - HELD: Provisions of s.461 would 
be applicable - The proceedings held by the Magistrate, to 
the extent that he is not empowered by law, would be void, and 
C 
void proceedings cannot be validated u/s 465 - This defect 
is not a mere irregularity and the conviction of the appellants 
cannot, even if sustainable on the evidence, be upheld u/s 
465 of the Code -
Therefore, s. 465 of the Code has no 
application. It cannot be called in aid to make what was 
incompetent, competent. 
', 
D 
On the complaint of respondent no. 1 against 
appellant rio.2 company and its director, appellant no.1, 
for an offence pQnishable u/s 138 of the Negotiable 
Instruments Act, 1881, Summary Case No. 2785 of 1998 
was registered in the Court of the Metropolitan 
Magistrate. After the evidence was recorded by the 
Metropolitan Magistrate, he was transferred and was 
succeeded by another Metropolitan Magistrate. The 
appellants-accused as well as the complainant filed a 
pursis that they had no objection to proceed with the 
matter on the basis of the evidence recorded by the 
" 
predecessor in office of the Metropolitan Magistrate in 
E 
F 
terms of s. 326 Cr.P.C. Accordingly, the Metropolitan 
Magistrate considered the evidence, heard the counsel 
G 
, for the parties and convicted both the appellants u/s 138 
of the Act and sentenced each of them to simple 
imprisonment for three months with a fine of Rs. 3,000/-. 
The appellate court confirmed the conviction, but noticing 
th?t appellant no. 2 was a private limited company and, 
H 
806 
SUPREME COURT REPORTS 
[2011] 10 S.C.R. 
A thus, could not have been sentenced to imprisonment, 
set aside the sentence of imprisonment qua appellant no. 
2 only. The High Court, in the revision petition, maintained 
the conviction but set aside the final order of sentence 
imposed upon the accused-appellants and remanded the 
B matter to the trial court for passing an appropriate order 
of sentence and compensation, if any payable u/s 357 Cr. 
P.C. Aggrieved, the accused filed the appeal. 
Disposing of the appeal, the Court 
C 
HELD: 1.1. Provision for summary trials is made in 
chapter XXI of the

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