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Report No. 77

12.3. Evidence recorded by predecessor.-

According to section 326 of the Code of Criminal Procedure, 1973, whenever any Magistrate1 after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor and partly recorded by himself, provided that if the succeeding 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.

The section further provides that when a case is transferred under the provisions of the Code from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter.

The above section, by its terms, does not apply to courts of session. Otherwise also, the Code of Criminal Procedure contains no such provision for the court of session. The result is that if the presiding officer of the sessions court is transferred or otherwise ceases to preside over that court after recording part of the evidence, the successor has to record that evidence all over again. This results in duplication of labour and wastage of the time of the court. It also results in prolonging the trial.

There are a number of cases in the court of session in which voluminous evidence has to be recorded during a period of weeks and sometimes of months. If in such cases after a major part of the evidence has been recorded, the presiding officer is transferred or for some other reason ceases to preside over that court, the whole process would have to be repeated all over again.

1. Section 326, Code of Criminal Procedure, 1973.

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