Legal Provisions of Section 326 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Conviction or commitment on evidence partly recorded by one Magistrate and partly by another:
ADVERTISEMENTS:
This section is an exception to the well known principle of criminal jurisprudence that it is a right of an accused person that his case should be decided by a Magistrate or a Judge who has heard the whole of it.
The section enables a successor Judge/Magistrate to continue an inquiry or trial from the stage left by his predecessor and pronounce judgment on evidence partly recorded by his predecessor and partly by himself, or on the evidence wholly recorded by the predecessor.
A Magistrate who succeeds another Magistrate by reason of transfer retirement, vacation of office or otherwise, may act on the evidence already recorded by his predecessor and frame a charge without re-examining the witnesses already examined by the predecessor Magistrate.
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ADVERTISEMENTS:
Sub-section (2) further provides that the above provisions contained in sub-section (1) shall also be applicable when a case is transferred from one Magistrate to another.
In Thingbaijam v. State of Manipur, the High Court of Gauhati clarified the conditions necessary for validity of conviction on the basis of evidence partly recorded by one Judge and partly by another in a Session trial. The Court, inter alia, observed:
“A Judge who has recorded the evidence in the case either in part or in whole can act on the evidences recorded in the case which are partly recorded by his successor and partly recorded by himself. For the application of Section 326 of the Code three postulates must exist together. First is, a Judge should have recorded the evidence in the case either in part or in whole. Next is, they said Judge should have ceased to exercise jurisdiction in that case, and third is, another Judge should have succeeded him and such successor Judge must have jurisdiction to try the offences concerned. If the above three conditions are completed, the successor Judge Stands empowered to act on the evidence already recorded in the case.”
The Madras High Court has, however, held that when a case is transferred from the Magistrate of second class to the Special Magistrate, first class, the latter being superior to the former, could not be said to be a successor of the former within the meaning of Section 326 and, therefore, the conviction based on the evidence partly recorded by the former, was liable to be quashed.
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Judgment:
Where the Magistrate does not wish to decide the case on the basis of evidence partly or wholly recorded by his predecessor, he may re-summon the witnesses and re-start the inquiry or trial of the case.
This section also empowers the successor Judge/Magistrate to act and give judgment on the evidence recorded by his predecessor. But the judgment must have been written, signed and pronounced by himself. In other words, this section does not empower a succeeding Magistrate to deliver the judgment written by his predecessor.
Exceptions:
The section does not apply to the following cases:—
(1) Summary trials,
(2) Cases in which proceedings have been stayed under Section 322 of the Code;
(3) Cases in which proceedings have been remitted to a superior Court under Section 325 of the Code.