It is a general principle of law that only a person who has heard the evidence in the case is competent to decide whether the accused is innocent or guilty and sec 326 is an exception to this rule and introduced purely for administrative convenience. In view of the frequent changes in the office of magistrates, the Code provides specially that a magistrate may pronounce judgment on evidence recorded by his predecessor or on evidence partly recorded by his predecessor and partly by himself.
But sub-section (3) of Section 326 of the Code lays down that the above rule shall both apply to summary trials or to case in which proceedings have been stayed under section 322 or in which proceedings have . been submitted to a superior Magistrate under Section 325. In other words, if in a summary trial a magistrate is transferred, the new incumbent will have to ho d do novo trial. He cannot act upon evidence recorded by his predecessor.
In Mukesh v. State of Rajasthan"1998 CRI. L. J. 2439 it was observed that Section 326, it may be noted an enabling and not disabling provisions. It enables a succeeding Judge or Magistrate to read in evidence the evidence recorded in an inquiry or trial of a case by his predecessor-in-office in that case. this principle, embodies in sub-section (1) of Section 326, Crpc. is in tune with the very spirit of a seedy trial of criminal cases. The proviso under sub-section (I) further enables a Judge or Magistrate to re-summon and re-examine a witness, already examined by his predecessor-in-office, if he considers it necessary so to do in the interest of justice. The proviso thus does not carve out an exception to the general principle contained in sub-section (1), instead it enables the Judge or Magistrate to re-summon and re-examine an already examined witness with a view to decide the case justly. Sub-section (2) speak of cessation of the jurisdiction of the out going Judge or Magistrate and conferment of jurisdiction upon the new incumbent of the office over a transferred case. Sub-section (3) of Section 326, Cr.P.C. starts with a non-obstante clause and excepts summary trials and cases falling within the purview of Sections 322 and 325, Cr.P.C. from the field of operation of the general principle laid down in sub-section (1). In applying the excepting clause in sub-section (3) with regard to summary trials to the general principle embodies in Section 326( I) it shall have to be ascertained from the proceeding taken in the trial of a given case and the record maintained therein and thereof as to whether the procedure actually adopted is summary or ordinary. If it is seen that the evidence of the witnesses has been recorded in full together with their cross-examinations and for the formalities which are generally attributes of an ordinary trial have been observed, technical objections were raised and decided before or during the course of preparation of the requisite record, the procedure adopted cannot be said to be that of a summary trial to which expression the non-obstante clause in sub-section (3) of Section 326, Cr.P.C. were intended to be applied.
The indicator to tell as to whether a case under the Act has been or is being tried summarily so as to attract the non-obstante clause is sub-section (3) of Section 326, Cr.P.C. is the compliance of Sections 263 and 264, Cr.P.C. A case in which the record of proceedings has been prepared in accordance with the provisions of Sections 263 and 264, Cr.P.c. would be a case of summary trial for the purposes of Section 326(3) and the evidence recorded by one Special Judge cannot be read in evidence by the succeeding Judge who would be required to hold the trial de novo. However, ifno record as per Sections 263 and 264 has been or is being maintained by the Special Judge and the case has been/is being tried as a regular summons case or a warrant case, such a case would though shall be considered as tried "in a summary way" for the purposes of c!' (t) of Section 12 AA( I) of the Act but would not be a "summary trial" so as to aUract the provisions of Section 326(3), Cr.P.c. and the evidence recorded by one Special Judge may be legally read in evidence by his successor-in-office and no de novo trial would be necessitated in such a case. The provisions contained in Section 326(1), Cr.P.C. are enabling provisions and therefore, the disabling provisions contained in sub-section (3) thereof are required to be strictly interpreted so as to promote and advance the purpose of Section 326(1), Cr.P.C. and to curb the mischief if seeks to redress.