Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment

Excerpt:

Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 120]Code Context                                echo "<div class='table-bordered'><b>Excerpt:</b><br/>";

                                    if (trim($desc['Judgement']['casenote'])) {

                                        echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['casenote']))), $query);
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '382707',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
			'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
			'appellant' => 'Arasegowda Alias Arasappa and Another',
			'authreffered' => '',
			'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
			'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2001-08-16',
			'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.R. Bannurmath, J.',
			'judgement' => '<p style="text-align: justify;">The Court</p><p style="text-align: justify;">1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p style="text-align: justify;">2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p style="text-align: justify;">3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p style="text-align: justify;">4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p style="text-align: justify;">5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p style="text-align: justify;">6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p style="text-align: justify;">7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p style="text-align: justify;">8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p style="text-align: justify;">9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
			'ratiodecidendi' => '',
			'respondent' => 'State by Nelamangala Police',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'arasegowda-alias-arasappa-vs-nelamangala-police',
	'args' => array(
		(int) 0 => '382707',
		(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
	)
)
$title_for_layout = 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382707',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
		'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
		'appellant' => 'Arasegowda Alias Arasappa and Another',
		'authreffered' => '',
		'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
		'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2001-08-16',
		'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.R. Bannurmath, J.',
		'judgement' => '<p>The Court</p><p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
		'ratiodecidendi' => '',
		'respondent' => 'State by Nelamangala Police',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'arasegowda-alias-arasappa-vs-nelamangala-police'
$args = array(
	(int) 0 => '382707',
	(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
)
$url = 'https://sooperkanoon.com/case/amp/382707/arasegowda-alias-arasappa-vs-nelamangala-police'
$ctype = ' High Court'
include - APP/View/Case/amp.ctp, line 120
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]Code Context                                echo "<div class='table-bordered'><b>Excerpt:</b><br/>";

                                    if (trim($desc['Judgement']['casenote'])) {

                                        echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['casenote']))), $query);
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '382707',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
			'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
			'appellant' => 'Arasegowda Alias Arasappa and Another',
			'authreffered' => '',
			'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
			'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2001-08-16',
			'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.R. Bannurmath, J.',
			'judgement' => '<p style="text-align: justify;">The Court</p><p style="text-align: justify;">1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p style="text-align: justify;">2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p style="text-align: justify;">3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p style="text-align: justify;">4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p style="text-align: justify;">5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p style="text-align: justify;">6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p style="text-align: justify;">7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p style="text-align: justify;">8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p style="text-align: justify;">9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
			'ratiodecidendi' => '',
			'respondent' => 'State by Nelamangala Police',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'arasegowda-alias-arasappa-vs-nelamangala-police',
	'args' => array(
		(int) 0 => '382707',
		(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
	)
)
$title_for_layout = 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382707',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
		'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
		'appellant' => 'Arasegowda Alias Arasappa and Another',
		'authreffered' => '',
		'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
		'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2001-08-16',
		'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.R. Bannurmath, J.',
		'judgement' => '<p>The Court</p><p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
		'ratiodecidendi' => '',
		'respondent' => 'State by Nelamangala Police',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'arasegowda-alias-arasappa-vs-nelamangala-police'
$args = array(
	(int) 0 => '382707',
	(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
)
$url = 'https://sooperkanoon.com/case/amp/382707/arasegowda-alias-arasappa-vs-nelamangala-police'
$ctype = ' High Court'
include - APP/View/Case/amp.ctp, line 120
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

- section 44-a: [n.ananda,j] execution of decrees passed by courts in reciprocating territory - production of non-satisfaction certificate in terms of sub-section (2) of section 44-a c.p.c. - whether the provisions of sub-section (2) of section 44-a is mandatory held, on careful consideration of provisions of sub-section (2) of section 44-a it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. further, the judgment awarding damages does not contravene provisions of section 74 of the indian contract act. the parties had entered into contract in u.k., in respect of property situate at u.k. therefore, adjudication of damages by applying english law cannot be termed as breach of any law in force in india. in the.....

Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]Code Context                                    }

                                //highest occurence of word in the judgement

                                echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '382707',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
			'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
			'appellant' => 'Arasegowda Alias Arasappa and Another',
			'authreffered' => '',
			'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
			'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2001-08-16',
			'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.R. Bannurmath, J.',
			'judgement' => '<p style="text-align: justify;">The Court</p><p style="text-align: justify;">1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p style="text-align: justify;">2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p style="text-align: justify;">3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p style="text-align: justify;">4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p style="text-align: justify;">5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p style="text-align: justify;">6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p style="text-align: justify;">7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p style="text-align: justify;">8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p style="text-align: justify;">9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
			'ratiodecidendi' => '',
			'respondent' => 'State by Nelamangala Police',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'arasegowda-alias-arasappa-vs-nelamangala-police',
	'args' => array(
		(int) 0 => '382707',
		(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
	)
)
$title_for_layout = 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382707',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
		'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
		'appellant' => 'Arasegowda Alias Arasappa and Another',
		'authreffered' => '',
		'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
		'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2001-08-16',
		'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.R. Bannurmath, J.',
		'judgement' => '<p>The Court</p><p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
		'ratiodecidendi' => '',
		'respondent' => 'State by Nelamangala Police',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'arasegowda-alias-arasappa-vs-nelamangala-police'
$args = array(
	(int) 0 => '382707',
	(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
)
$url = 'https://sooperkanoon.com/case/amp/382707/arasegowda-alias-arasappa-vs-nelamangala-police'
$ctype = ' High Court'
include - APP/View/Case/amp.ctp, line 123
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]Code Context                                    }

                                //highest occurence of word in the judgement

                                echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '382707',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
			'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
			'appellant' => 'Arasegowda Alias Arasappa and Another',
			'authreffered' => '',
			'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
			'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2001-08-16',
			'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.R. Bannurmath, J.',
			'judgement' => '<p style="text-align: justify;">The Court</p><p style="text-align: justify;">1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p style="text-align: justify;">2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p style="text-align: justify;">3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p style="text-align: justify;">4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p style="text-align: justify;">5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p style="text-align: justify;">6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p style="text-align: justify;">7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p style="text-align: justify;">8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p style="text-align: justify;">9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
			'ratiodecidendi' => '',
			'respondent' => 'State by Nelamangala Police',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'arasegowda-alias-arasappa-vs-nelamangala-police',
	'args' => array(
		(int) 0 => '382707',
		(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
	)
)
$title_for_layout = 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382707',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
		'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
		'appellant' => 'Arasegowda Alias Arasappa and Another',
		'authreffered' => '',
		'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
		'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2001-08-16',
		'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.R. Bannurmath, J.',
		'judgement' => '<p>The Court</p><p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
		'ratiodecidendi' => '',
		'respondent' => 'State by Nelamangala Police',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'arasegowda-alias-arasappa-vs-nelamangala-police'
$args = array(
	(int) 0 => '382707',
	(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
)
$url = 'https://sooperkanoon.com/case/amp/382707/arasegowda-alias-arasappa-vs-nelamangala-police'
$ctype = ' High Court'
include - APP/View/Case/amp.ctp, line 123
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

the court1. these two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the special judge, bangalore rural district, bangalore, in special case no. 23 of 1988. cri. a. no. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of clause 9 of the karnataka essential commodities licensing order, 1986 (hereinafter referred to as 'the licensing order'), which is punishable under sections 3 and 7 of the essential commodities act, 1955 (for short 'the ec act') and sentencing them to pay a fine of rs. 500/- each with default clause. cri. a. no. 455 of 1997 is filed by the state challenging the correction of acquittal of the accused/respondents of clause 10 of the licensing order and praying to enhance the sentence.2......

Judgment:

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '382707',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
			'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
			'appellant' => 'Arasegowda Alias Arasappa and Another',
			'authreffered' => '',
			'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
			'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2001-08-16',
			'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.R. Bannurmath, J.',
			'judgement' => '<p style="text-align: justify;">The Court</p><p style="text-align: justify;">1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p style="text-align: justify;">2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p style="text-align: justify;">3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p style="text-align: justify;">4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p style="text-align: justify;">5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p style="text-align: justify;">6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p style="text-align: justify;">7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p style="text-align: justify;">8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p style="text-align: justify;">9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
			'ratiodecidendi' => '',
			'respondent' => 'State by Nelamangala Police',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'arasegowda-alias-arasappa-vs-nelamangala-police',
	'args' => array(
		(int) 0 => '382707',
		(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
	)
)
$title_for_layout = 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382707',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
		'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
		'appellant' => 'Arasegowda Alias Arasappa and Another',
		'authreffered' => '',
		'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
		'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2001-08-16',
		'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.R. Bannurmath, J.',
		'judgement' => '<p>The Court</p><p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
		'ratiodecidendi' => '',
		'respondent' => 'State by Nelamangala Police',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'arasegowda-alias-arasappa-vs-nelamangala-police'
$args = array(
	(int) 0 => '382707',
	(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
)
$url = 'https://sooperkanoon.com/case/amp/382707/arasegowda-alias-arasappa-vs-nelamangala-police'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>The Court',
	(int) 1 => '<p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.',
	(int) 2 => '<p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.',
	(int) 3 => '<p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.',
	(int) 4 => '<p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.',
	(int) 5 => '<p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.',
	(int) 6 => '<p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
	(int) 7 => '<p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,',
	(int) 8 => '<p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.',
	(int) 9 => '<p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p>',
	(int) 10 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 11
$i = (int) 0
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

The Court

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '382707',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
			'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
			'appellant' => 'Arasegowda Alias Arasappa and Another',
			'authreffered' => '',
			'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
			'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2001-08-16',
			'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.R. Bannurmath, J.',
			'judgement' => '<p style="text-align: justify;">The Court</p><p style="text-align: justify;">1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p style="text-align: justify;">2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p style="text-align: justify;">3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p style="text-align: justify;">4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p style="text-align: justify;">5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p style="text-align: justify;">6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p style="text-align: justify;">7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p style="text-align: justify;">8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p style="text-align: justify;">9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
			'ratiodecidendi' => '',
			'respondent' => 'State by Nelamangala Police',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'arasegowda-alias-arasappa-vs-nelamangala-police',
	'args' => array(
		(int) 0 => '382707',
		(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
	)
)
$title_for_layout = 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382707',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
		'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
		'appellant' => 'Arasegowda Alias Arasappa and Another',
		'authreffered' => '',
		'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
		'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2001-08-16',
		'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.R. Bannurmath, J.',
		'judgement' => '<p>The Court</p><p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
		'ratiodecidendi' => '',
		'respondent' => 'State by Nelamangala Police',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'arasegowda-alias-arasappa-vs-nelamangala-police'
$args = array(
	(int) 0 => '382707',
	(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
)
$url = 'https://sooperkanoon.com/case/amp/382707/arasegowda-alias-arasappa-vs-nelamangala-police'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>The Court',
	(int) 1 => '<p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.',
	(int) 2 => '<p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.',
	(int) 3 => '<p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.',
	(int) 4 => '<p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.',
	(int) 5 => '<p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.',
	(int) 6 => '<p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
	(int) 7 => '<p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,',
	(int) 8 => '<p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.',
	(int) 9 => '<p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p>',
	(int) 10 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 11
$i = (int) 1
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the Essential Commodities Act, 1955 (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '382707',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
			'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
			'appellant' => 'Arasegowda Alias Arasappa and Another',
			'authreffered' => '',
			'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
			'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2001-08-16',
			'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.R. Bannurmath, J.',
			'judgement' => '<p style="text-align: justify;">The Court</p><p style="text-align: justify;">1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p style="text-align: justify;">2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p style="text-align: justify;">3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p style="text-align: justify;">4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p style="text-align: justify;">5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p style="text-align: justify;">6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p style="text-align: justify;">7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p style="text-align: justify;">8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p style="text-align: justify;">9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
			'ratiodecidendi' => '',
			'respondent' => 'State by Nelamangala Police',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'arasegowda-alias-arasappa-vs-nelamangala-police',
	'args' => array(
		(int) 0 => '382707',
		(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
	)
)
$title_for_layout = 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382707',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
		'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
		'appellant' => 'Arasegowda Alias Arasappa and Another',
		'authreffered' => '',
		'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
		'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2001-08-16',
		'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.R. Bannurmath, J.',
		'judgement' => '<p>The Court</p><p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
		'ratiodecidendi' => '',
		'respondent' => 'State by Nelamangala Police',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'arasegowda-alias-arasappa-vs-nelamangala-police'
$args = array(
	(int) 0 => '382707',
	(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
)
$url = 'https://sooperkanoon.com/case/amp/382707/arasegowda-alias-arasappa-vs-nelamangala-police'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>The Court',
	(int) 1 => '<p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.',
	(int) 2 => '<p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.',
	(int) 3 => '<p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.',
	(int) 4 => '<p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.',
	(int) 5 => '<p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.',
	(int) 6 => '<p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
	(int) 7 => '<p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,',
	(int) 8 => '<p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.',
	(int) 9 => '<p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p>',
	(int) 10 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 11
$i = (int) 2
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '382707',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
			'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
			'appellant' => 'Arasegowda Alias Arasappa and Another',
			'authreffered' => '',
			'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
			'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2001-08-16',
			'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.R. Bannurmath, J.',
			'judgement' => '<p style="text-align: justify;">The Court</p><p style="text-align: justify;">1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p style="text-align: justify;">2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p style="text-align: justify;">3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p style="text-align: justify;">4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p style="text-align: justify;">5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p style="text-align: justify;">6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p style="text-align: justify;">7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p style="text-align: justify;">8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p style="text-align: justify;">9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
			'ratiodecidendi' => '',
			'respondent' => 'State by Nelamangala Police',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'arasegowda-alias-arasappa-vs-nelamangala-police',
	'args' => array(
		(int) 0 => '382707',
		(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
	)
)
$title_for_layout = 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382707',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
		'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
		'appellant' => 'Arasegowda Alias Arasappa and Another',
		'authreffered' => '',
		'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
		'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2001-08-16',
		'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.R. Bannurmath, J.',
		'judgement' => '<p>The Court</p><p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
		'ratiodecidendi' => '',
		'respondent' => 'State by Nelamangala Police',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'arasegowda-alias-arasappa-vs-nelamangala-police'
$args = array(
	(int) 0 => '382707',
	(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
)
$url = 'https://sooperkanoon.com/case/amp/382707/arasegowda-alias-arasappa-vs-nelamangala-police'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>The Court',
	(int) 1 => '<p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.',
	(int) 2 => '<p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.',
	(int) 3 => '<p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.',
	(int) 4 => '<p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.',
	(int) 5 => '<p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.',
	(int) 6 => '<p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
	(int) 7 => '<p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,',
	(int) 8 => '<p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.',
	(int) 9 => '<p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p>',
	(int) 10 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 11
$i = (int) 3
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '382707',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
			'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
			'appellant' => 'Arasegowda Alias Arasappa and Another',
			'authreffered' => '',
			'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
			'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2001-08-16',
			'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.R. Bannurmath, J.',
			'judgement' => '<p style="text-align: justify;">The Court</p><p style="text-align: justify;">1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p style="text-align: justify;">2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p style="text-align: justify;">3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p style="text-align: justify;">4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p style="text-align: justify;">5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p style="text-align: justify;">6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p style="text-align: justify;">7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p style="text-align: justify;">8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p style="text-align: justify;">9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
			'ratiodecidendi' => '',
			'respondent' => 'State by Nelamangala Police',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'arasegowda-alias-arasappa-vs-nelamangala-police',
	'args' => array(
		(int) 0 => '382707',
		(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
	)
)
$title_for_layout = 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382707',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
		'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
		'appellant' => 'Arasegowda Alias Arasappa and Another',
		'authreffered' => '',
		'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
		'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2001-08-16',
		'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.R. Bannurmath, J.',
		'judgement' => '<p>The Court</p><p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
		'ratiodecidendi' => '',
		'respondent' => 'State by Nelamangala Police',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'arasegowda-alias-arasappa-vs-nelamangala-police'
$args = array(
	(int) 0 => '382707',
	(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
)
$url = 'https://sooperkanoon.com/case/amp/382707/arasegowda-alias-arasappa-vs-nelamangala-police'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>The Court',
	(int) 1 => '<p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.',
	(int) 2 => '<p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.',
	(int) 3 => '<p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.',
	(int) 4 => '<p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.',
	(int) 5 => '<p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.',
	(int) 6 => '<p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
	(int) 7 => '<p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,',
	(int) 8 => '<p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.',
	(int) 9 => '<p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p>',
	(int) 10 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 11
$i = (int) 4
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '382707',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
			'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
			'appellant' => 'Arasegowda Alias Arasappa and Another',
			'authreffered' => '',
			'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
			'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2001-08-16',
			'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.R. Bannurmath, J.',
			'judgement' => '<p style="text-align: justify;">The Court</p><p style="text-align: justify;">1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p style="text-align: justify;">2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p style="text-align: justify;">3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p style="text-align: justify;">4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p style="text-align: justify;">5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p style="text-align: justify;">6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p style="text-align: justify;">7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p style="text-align: justify;">8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p style="text-align: justify;">9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
			'ratiodecidendi' => '',
			'respondent' => 'State by Nelamangala Police',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'arasegowda-alias-arasappa-vs-nelamangala-police',
	'args' => array(
		(int) 0 => '382707',
		(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
	)
)
$title_for_layout = 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382707',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
		'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
		'appellant' => 'Arasegowda Alias Arasappa and Another',
		'authreffered' => '',
		'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
		'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2001-08-16',
		'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.R. Bannurmath, J.',
		'judgement' => '<p>The Court</p><p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
		'ratiodecidendi' => '',
		'respondent' => 'State by Nelamangala Police',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'arasegowda-alias-arasappa-vs-nelamangala-police'
$args = array(
	(int) 0 => '382707',
	(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
)
$url = 'https://sooperkanoon.com/case/amp/382707/arasegowda-alias-arasappa-vs-nelamangala-police'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>The Court',
	(int) 1 => '<p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.',
	(int) 2 => '<p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.',
	(int) 3 => '<p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.',
	(int) 4 => '<p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.',
	(int) 5 => '<p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.',
	(int) 6 => '<p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
	(int) 7 => '<p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,',
	(int) 8 => '<p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.',
	(int) 9 => '<p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p>',
	(int) 10 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 11
$i = (int) 5
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '382707',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
			'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
			'appellant' => 'Arasegowda Alias Arasappa and Another',
			'authreffered' => '',
			'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
			'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2001-08-16',
			'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.R. Bannurmath, J.',
			'judgement' => '<p style="text-align: justify;">The Court</p><p style="text-align: justify;">1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p style="text-align: justify;">2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p style="text-align: justify;">3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p style="text-align: justify;">4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p style="text-align: justify;">5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p style="text-align: justify;">6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p style="text-align: justify;">7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p style="text-align: justify;">8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p style="text-align: justify;">9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
			'ratiodecidendi' => '',
			'respondent' => 'State by Nelamangala Police',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'arasegowda-alias-arasappa-vs-nelamangala-police',
	'args' => array(
		(int) 0 => '382707',
		(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
	)
)
$title_for_layout = 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382707',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
		'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
		'appellant' => 'Arasegowda Alias Arasappa and Another',
		'authreffered' => '',
		'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
		'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2001-08-16',
		'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.R. Bannurmath, J.',
		'judgement' => '<p>The Court</p><p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
		'ratiodecidendi' => '',
		'respondent' => 'State by Nelamangala Police',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'arasegowda-alias-arasappa-vs-nelamangala-police'
$args = array(
	(int) 0 => '382707',
	(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
)
$url = 'https://sooperkanoon.com/case/amp/382707/arasegowda-alias-arasappa-vs-nelamangala-police'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>The Court',
	(int) 1 => '<p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.',
	(int) 2 => '<p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.',
	(int) 3 => '<p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.',
	(int) 4 => '<p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.',
	(int) 5 => '<p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.',
	(int) 6 => '<p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
	(int) 7 => '<p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,',
	(int) 8 => '<p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.',
	(int) 9 => '<p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p>',
	(int) 10 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 11
$i = (int) 6
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '382707',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
			'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
			'appellant' => 'Arasegowda Alias Arasappa and Another',
			'authreffered' => '',
			'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
			'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2001-08-16',
			'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.R. Bannurmath, J.',
			'judgement' => '<p style="text-align: justify;">The Court</p><p style="text-align: justify;">1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p style="text-align: justify;">2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p style="text-align: justify;">3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p style="text-align: justify;">4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p style="text-align: justify;">5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p style="text-align: justify;">6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p style="text-align: justify;">7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p style="text-align: justify;">8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p style="text-align: justify;">9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
			'ratiodecidendi' => '',
			'respondent' => 'State by Nelamangala Police',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'arasegowda-alias-arasappa-vs-nelamangala-police',
	'args' => array(
		(int) 0 => '382707',
		(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
	)
)
$title_for_layout = 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382707',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
		'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
		'appellant' => 'Arasegowda Alias Arasappa and Another',
		'authreffered' => '',
		'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
		'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2001-08-16',
		'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.R. Bannurmath, J.',
		'judgement' => '<p>The Court</p><p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
		'ratiodecidendi' => '',
		'respondent' => 'State by Nelamangala Police',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'arasegowda-alias-arasappa-vs-nelamangala-police'
$args = array(
	(int) 0 => '382707',
	(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
)
$url = 'https://sooperkanoon.com/case/amp/382707/arasegowda-alias-arasappa-vs-nelamangala-police'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>The Court',
	(int) 1 => '<p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.',
	(int) 2 => '<p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.',
	(int) 3 => '<p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.',
	(int) 4 => '<p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.',
	(int) 5 => '<p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.',
	(int) 6 => '<p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
	(int) 7 => '<p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,',
	(int) 8 => '<p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.',
	(int) 9 => '<p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p>',
	(int) 10 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 11
$i = (int) 7
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '382707',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
			'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
			'appellant' => 'Arasegowda Alias Arasappa and Another',
			'authreffered' => '',
			'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
			'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2001-08-16',
			'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.R. Bannurmath, J.',
			'judgement' => '<p style="text-align: justify;">The Court</p><p style="text-align: justify;">1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p style="text-align: justify;">2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p style="text-align: justify;">3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p style="text-align: justify;">4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p style="text-align: justify;">5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p style="text-align: justify;">6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p style="text-align: justify;">7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p style="text-align: justify;">8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p style="text-align: justify;">9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
			'ratiodecidendi' => '',
			'respondent' => 'State by Nelamangala Police',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'arasegowda-alias-arasappa-vs-nelamangala-police',
	'args' => array(
		(int) 0 => '382707',
		(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
	)
)
$title_for_layout = 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382707',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
		'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
		'appellant' => 'Arasegowda Alias Arasappa and Another',
		'authreffered' => '',
		'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
		'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2001-08-16',
		'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.R. Bannurmath, J.',
		'judgement' => '<p>The Court</p><p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
		'ratiodecidendi' => '',
		'respondent' => 'State by Nelamangala Police',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'arasegowda-alias-arasappa-vs-nelamangala-police'
$args = array(
	(int) 0 => '382707',
	(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
)
$url = 'https://sooperkanoon.com/case/amp/382707/arasegowda-alias-arasappa-vs-nelamangala-police'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>The Court',
	(int) 1 => '<p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.',
	(int) 2 => '<p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.',
	(int) 3 => '<p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.',
	(int) 4 => '<p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.',
	(int) 5 => '<p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.',
	(int) 6 => '<p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
	(int) 7 => '<p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,',
	(int) 8 => '<p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.',
	(int) 9 => '<p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p>',
	(int) 10 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 11
$i = (int) 8
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '382707',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
			'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
			'appellant' => 'Arasegowda Alias Arasappa and Another',
			'authreffered' => '',
			'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
			'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2001-08-16',
			'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.R. Bannurmath, J.',
			'judgement' => '<p style="text-align: justify;">The Court</p><p style="text-align: justify;">1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p style="text-align: justify;">2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p style="text-align: justify;">3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p style="text-align: justify;">4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p style="text-align: justify;">5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p style="text-align: justify;">6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p style="text-align: justify;">7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p style="text-align: justify;">8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p style="text-align: justify;">9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
			'ratiodecidendi' => '',
			'respondent' => 'State by Nelamangala Police',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'arasegowda-alias-arasappa-vs-nelamangala-police',
	'args' => array(
		(int) 0 => '382707',
		(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
	)
)
$title_for_layout = 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382707',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
		'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
		'appellant' => 'Arasegowda Alias Arasappa and Another',
		'authreffered' => '',
		'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
		'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2001-08-16',
		'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.R. Bannurmath, J.',
		'judgement' => '<p>The Court</p><p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
		'ratiodecidendi' => '',
		'respondent' => 'State by Nelamangala Police',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'arasegowda-alias-arasappa-vs-nelamangala-police'
$args = array(
	(int) 0 => '382707',
	(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
)
$url = 'https://sooperkanoon.com/case/amp/382707/arasegowda-alias-arasappa-vs-nelamangala-police'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>The Court',
	(int) 1 => '<p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.',
	(int) 2 => '<p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.',
	(int) 3 => '<p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.',
	(int) 4 => '<p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.',
	(int) 5 => '<p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.',
	(int) 6 => '<p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
	(int) 7 => '<p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,',
	(int) 8 => '<p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.',
	(int) 9 => '<p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p>',
	(int) 10 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 11
$i = (int) 9
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

                                        }

                                        echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp'
$dataForView = array(
	'title_for_layout' => 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '382707',
			'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
			'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
			'appellant' => 'Arasegowda Alias Arasappa and Another',
			'authreffered' => '',
			'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
			'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
			'counseldef' => '',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2001-08-16',
			'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.R. Bannurmath, J.',
			'judgement' => '<p style="text-align: justify;">The Court</p><p style="text-align: justify;">1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p style="text-align: justify;">2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p style="text-align: justify;">3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p style="text-align: justify;">4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p style="text-align: justify;">5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p style="text-align: justify;">6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p style="text-align: justify;">7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p style="text-align: justify;">8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p style="text-align: justify;">9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
			'ratiodecidendi' => '',
			'respondent' => 'State by Nelamangala Police',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'arasegowda-alias-arasappa-vs-nelamangala-police',
	'args' => array(
		(int) 0 => '382707',
		(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
	)
)
$title_for_layout = 'Arasegowda Alias Arasappa and Another Vs State by Nelamangala Police - Citation 382707 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '382707',
		'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 262, 265, 322(3) and 326; <a href="/act/51883/essential-commodities-act-1955-complete-act">Essential Commodities Act, 1955</a> - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986',
		'appealno' => 'Criminal Appeal Nos. 258 and 455 of 1997',
		'appellant' => 'Arasegowda Alias Arasappa and Another',
		'authreffered' => '',
		'casename' => 'Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police',
		'casenote' => ' - Section 44-A:  [N.Ananda,J] Execution of decrees passed by Courts in reciprocating territory - Production of non-satisfaction certificate in terms of sub-Section (2) of Section 44-A C.P.C. - Whether the provisions of sub-Section (2) of Section 44-A is mandatory Held,  On careful consideration  of provisions of sub-Section (2) of Section 44-A it is manifest that production of certificate of non-satisfaction is a procedural aspect and it does not pertain to jurisdiction. Further, The Judgment awarding damages does not contravene provisions of Section 74 of the Indian Contract Act. The parties had entered into contract in U.K., in respect of property situate at U.K. Therefore, adjudication of damages by applying English Law cannot be termed as breach  of any law in force in India. In the circumstances, it cannot be held that decree in execution is being enforced to recover penalty as stated under Explanation II to Section 44-A of C.P.C. It is also not possible to hold that decree sustains a claim founded on breach of Section 74 of the Indian Contract Act. On facts held, The judgment-debtor had deposited part of the decreetal amount with the High Court of Justice, Chancery Division, London or through its solicitors, which was forfeited in terms of the decree under execution. Therefore, judgment-debtor cannot be permitted to contend that it was not a party to the proceedings and the judgment obtained is a product of fraud. The judgment-debtor has raised all tenable and untenable objections to avoid liability of decree under execution. The Trial  Judge referring to proceedings before High Court of Justice, Chancery Division, London has held that judgment-debtor had knowledge of the proceedings and has dealt with all the contentions, with reference to Sections 13(a) to (f) & 44-A of C.P.C.,  Hence, impugned order does not call for any interference. -  However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. 6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2001-08-16',
		'deposition' => 'Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.R. Bannurmath, J.',
		'judgement' => '<p>The Court</p><p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.</p><p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.</p><p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.</p><p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.</p><p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.</p><p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.</p><p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,</p><p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.</p><p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2001KAR4538; 2001(5)KarLJ601',
		'ratiodecidendi' => '',
		'respondent' => 'State by Nelamangala Police',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'arasegowda-alias-arasappa-vs-nelamangala-police'
$args = array(
	(int) 0 => '382707',
	(int) 1 => 'arasegowda-alias-arasappa-vs-nelamangala-police'
)
$url = 'https://sooperkanoon.com/case/amp/382707/arasegowda-alias-arasappa-vs-nelamangala-police'
$ctype = ' High Court'
$content = array(
	(int) 0 => '<p>The Court',
	(int) 1 => '<p>1. These two appeals arise from the judgment of conviction and order of sentence dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988. Cri. A. No. 258 of 1997 is filed challenging the conviction of the appellants for the contravention of Clause 9 of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as 'the Licensing Order'), which is punishable under Sections 3 and 7 of the <a>Essential Commodities Act, 1955</a> (for short 'the EC Act') and sentencing them to pay a fine of Rs. 500/- each with default clause. Cri. A. No. 455 of 1997 is filed by the State challenging the correction of acquittal of the accused/respondents of Clause 10 of the Licensing Order and praying to enhance the sentence.',
	(int) 2 => '<p>2. Since the appreciation of evidence and the point to be considered in both the appeals are common, these appeals are taken up together for consideration and disposed of by this common judgment.',
	(int) 3 => '<p>3. The learned Counsel appearing for the appellants/accused submitted that though this is an appeal against conviction, in view of the fact that there is question of law involved and the appeals could be disposed of only on the question of law, there is no need to look into detailed evidence. He submitted that under the provisions of the EC Act, Section 12-AA(f), the trial under the EC Act is to be conducted in summary way and as such, the provisions under Sections 262 and 265 of the Criminal Procedure Code are applicable to such trial. Further, drawing the attention of the Court to Section 326 and especially to sub-section (3), it is contended that under Section 326 of the Criminal Procedure Code, the evidence recorded by one Presiding Officer or Judge can be relied upon by the succeeding Judge for pronouncement of order of convicting or acquitting the accused. However, emphasising on sub-section (3) of Section 326 of the Criminal Procedure Code, it is contended that these exceptional provisions are not attracted or applicable insofar as summary trials are concerned. Hence, it is contended that when the evidence in the present case has been recorded by two different Judges and the conviction has been ordered by third Judge on the basis of such evidence recorded and hence it is contended that there is incurable illegality committed by the Court and on that ground alone the conviction is liable to be set aside. On the other hand, learned Additional State Public Prosecutor argued in support of the same inter alia contending that the procedure prescribed and non-compliance of it may be an irregularity in procedure, but as it has not violated any right or as it has not caused any prejudice to the appellant, the conviction need not be set aside on technical ground. He further contended that even if the contention of the learned Counsel for the appellant is accepted this Court may set aside the order of conviction and remand the case for de novo trial.',
	(int) 4 => '<p>4. I have heard the learned Counsel and the learned Additional State Public Prosecutor in detail and perused the records of the Trial Court.',
	(int) 5 => '<p>5. It is not in dispute that the present proceedings are for the offences under Sections 3 and 7 of the EC Act read with the Licensing Order and as such under Section 12-AA(f) of the EC Act they are to be tried in a summary way. It is needless to say that it is the cardinal principle in criminal law that normally case has to be decided by a Judge who has recorded the evidence, since he will also have noticed the demeanor of the witnesses. Of course, under Section 326 of the Criminal Procedure there is an exception to this rule. Under Section 326 of the Criminal Procedure Code whenever any Judge or Magistrate who has heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, the succeeding Judge or Magistrate can act on the evidence so recorded by his predecessor. But, clause (3) of Section 326 of the Criminal Procedure Code prohibits application of the provisions of Section 326 of the Criminal Procedure Code so far as summary trials are concerned or where the trial is stayed under Section 322 or the proceedings have been submitted to Magistrate under Section 325 of the Criminal Procedure Code. As such Section 326 of the Criminal Procedure Code is clearly not applicable to the summary trial. In the present case, undisputedly the proceedings are of summary in nature as per Section 12-AA(f) of the Essential Commodities Act and as such the exceptional rule under Section 326 of the Criminal Procedure Code of permitting a Magistrate or a Judge to carry forward with the trial after his predecessor is impermissible one. Thus, if this procedure principle is violated by the succeeding Judge or Magistrate and if he proceeds with the trial or passing order he would be doing something that he has not been empowered. As such it becomes an incurable irregularity. Of course, in such contingency it would be open for the Appellate Court to set aside such illegality by quashing the impugned order and remitting back the case to the Trial Court for de novo enquiry.',
	(int) 6 => '<p>6. However, taking into consideration the nature of the allegations, the maximum sentence permissible for the offence alleged as well as the fact that the case is pending for the last more than 13 years and odd I am of the view that the de novo en(sic) v would cause harassment to the parties.',
	(int) 7 => '<p>7. Hence, by upholding the contention of the learned Counsel for the appellants/accused that the impugned order passed by the Special Judge under the EC Act is illegal and of incurable irregularity, the same is hereby set aside,',
	(int) 8 => '<p>8. In the result Criminal Appeal No. 258 of 1997 is allowed. The judgment and order of conviction dated 22-3-1997 passed by the Special Judge, Bangalore Rural District, Bangalore, in Special Case No. 23 of 1988 is hereby set aside and the appellants/accused are acquitted of all the charges. In consequence of allowing of Criminal Appeal No. 258 of 1997 filed by the accused and their conviction being set aside, Criminal Appeal No. 455 of 1997 filed by the State does not survive for consideration and the same is dismissed.',
	(int) 9 => '<p>9. As the appellants/accused have executed bail bonds at the stage of suspension of sentence, the bail bonds stand cancelled.<p>',
	(int) 10 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 11
$i = (int) 10
include - APP/View/Case/amp.ctp, line 144
View::_evaluate() - CORE/Cake/View/View.php, line 971
View::_render() - CORE/Cake/View/View.php, line 933
View::render() - CORE/Cake/View/View.php, line 473
Controller::render() - CORE/Cake/Controller/Controller.php, line 963
Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200
Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
[main] - APP/webroot/index.php, line 109

Subject	Criminal
Court	Karnataka High Court
Decided On	Aug-16-2001
Case Number	Criminal Appeal Nos. 258 and 455 of 1997
Judge	S.R. Bannurmath, J.
Reported in	ILR2001KAR4538; 2001(5)KarLJ601
Acts	Code of Criminal Procedure (CrPC) , 1973 - Sections 262, 265, 322(3) and 326; Essential Commodities Act, 1955 - Sections 3, 7 and 12-AA; Karnataka Essential Commodities Licensing Order, 1986
Appellant	Arasegowda Alias Arasappa and Another
Respondent	State by Nelamangala Police
Advocates:	Sri H.C. Hanumaiah, Adv. and ;Sri M. Marigowda, ;Additional State Public Prosecutor
Disposition	Criminal appeal 258 of 1997 allowed. Criminal appeal 455 of 1997 dismissed

Arasegowda Alias Arasappa and Another Vs. State by Nelamangala Police - Court Judgment