Trial Has To Begin De Novo When Case Is Committed By Magistrate To Sessions Court: Delhi High Court

The Delhi High Court has ruled that when a case is committed by the Magistrate to the Court of Session, the trial would have to begin de novo.

Justice Amit Bansal observed that the Sessions Court would first frame charges and then proceed with the examination of the witnesses.

“ When a case is committed by the Court of Magistrate to the Court of Session, the Magistrate becomes functus officio and any evidence recorded therein cannot be held to be admissible for the purposes of a de novo trial before the committal Court. Therefore, the evidence would also have to be recorded de novo,” the court said.

Justice Bansal was dealing with a plea moved by an accused challenging an order passed by the an Additional Sessions Judge which held that a de novo trial is not required to be started when the matter is committed by the Court of Magistrate to the Court of Session.

The FIR was registered in 2003 for the offences under Sections 341, 323, 308, 506 and 34 of Indian Penal Code, 1860. In 2005, a metropolitan magistrate framed charges in the case and rejected an application moved by the complainant during the course of trial seeking committal of the case to the Court of Session.

A sessions court allowed the revision petition moved by the complainant against the MM's order and the case was committed to the Court of Session.

Vide the impugned order passed last year, the ASJ ordered that a fresh de novo trial is not to be started, especially when all the witnesses have been examined by the MM.

Agreeing with the judgments passed on the subject by High Courts of Madras, Punjab and Haryana and Madhya Pradesh, Justice Bansal said:

“The mandate of Section 323 of the CrPC is clear. When a case is committed by the Magistrate to the Court of Session, the trial would have to begin de novo. The Court of Session would first frame charges and then proceed with the examination of the witnesses.”

The court observed that a Sessions Court cannot be treated as a successor of the Magistrate and therefore, Section 326 of the CrPC would not be applicable to the present case.

Setting aside the impugned order, the court directed that the trial shall proceed before the Court of Session from the stage it was before the impugned order was passed.

“However, taking note of the fact that the present FIR was registered in the year 2003, the learned ASJ is requested to expeditiously complete the trial in the present case, preferably within a period of six months from the date fixed,” the court said.

Title: SHANKAR @ GORI SHANKAR v. STATE OF NCT OF DELHI & ANR.

Citation: 2023 LiveLaw (Del) 1275

Click Here To Read Order