NITINBHAI SAEVATILAL SHAH & ANOTHERversusMANUBHAI MANJIBHAI PANCHAL & ANOTHER

                          [2011] 10 S.C.R. 804


A           NITINBHAI SAEVATILAL SHAH & ANOTHER
                                     v.
          MANUBHAI MANJIBHAI PANCHAL & ANOTHER
              (Criminal Appeal No. 1703 of 2011)
                         SEPTEMBER 1, 2011
B
            [J.M. PANCHAL AND H. L. GOKHALE, JJ.]

          Code of Criminal Procedure, 1973:

c           ss. 263 and 264 read with s.326(3) and s.461- Summary
     trial - Procedure in part-heard cases on transfer of the Judge/
     Magistrate - HELD: In view of sub-s.(3) of s.326, sub s.(1) of .
    s.326 which authorizes a Magistrate to act on the evidence
    recorded by his predecessor, does not apply to summary trials
0   - The prohibition contained in sub s. (3) of s 326 is absolute
     and. admits of no exception - In summary proceedings, the
     successor Judge or Magistrate has no authority to proceed
     with the trial from a stage at which his predecessor has left it
    because in summary trials only substance of evidence has
    to be recorded - The court does not record the entire
E   statement of witness - s.326 (3) does not permit the
     Magistrate to act upon the substance of the evidence
    recorded by his predecessor - It is well settled that no amount
    of consent by the parties can confer jurisdiction where there
    exists none, on a court of law nor can they divest a court of
F   jurisdiction which it possesses under the law - The cardinal
    principle of law in criminal trial is that it is a right of an accused
     that his case should be decided by a Judge who has heard
    the whole of it - Therefore, except in regard to those cases
     which fall within the ambit of s. 326, the Magistrate cannot
G   proceed with the trial placing reliance on the evidence
    recorded by his predecessor - He has got to try the case de
    novo - In this view of the matter, the High Court should have
    ordered de novo trial - This is not a case of irregularity but
     want of competency - There has been no proper trial of the
H                                  804
  NITINBHAI SAEVATILAL SHAH & ANR. Ii. MANUBHAI 805
            MANJIBHAI PANCHAL & ANR.

 case and there should be one - The impugned judgment is           A
 set aside and the matter remanded to Metropolitan Magistrate
 for retrial in accordance with law - Jurisdiction - Negotiable
 Instruments Act, 1881 - s. 138.

      ss. 461 and 465 -Void proceedings - Summary trial -          8
 Metropolitan Magistrate after recording evidence, transferred
 - His successor proceeded with the trial from the stage let in
 and convicted the accused - HELD: Provisions of s.461 would
 be applicable - The proceedings held by the Magistrate, to
 the extent that he is not empowered by law, would be void, and    C
 void proceedings cannot be validated u/s 465 - This defect
 is not a mere irregularity and the conviction of the appellants
 cannot, even if sustainable on the evidence, be upheld u/s
 465 of the Code - Therefore, s. 465 of the Code has no
 application. It cannot be called in aid to make what was
 incompetent, competent.                                  ',       D

       On the complaint of respondent no. 1 against
  appellant rio.2 company and its director, appellant no.1,
  for an offence pQnishable u/s 138 of the Negotiable
  Instruments Act, 1881, Summary Case No. 2785 of 1998             E
  was registered in the Court of the Metropolitan
  Magistrate. After the evidence was recorded by the
  Metropolitan Magistrate, he was transferred and was
  succeeded by another Metropolitan Magistrate. The
  appellants-accused as well as the complainant filed a            F
  pursis that they had no objection to proceed with the
  matter on the basis of the evidence recorded by the
                                       "
  predecessor in office of the Metropolitan   Magistrate in
  terms of s. 326 Cr.P.C. Accordingly, the Metropolitan
  Magistrate considered the evidence, heard the counsel            G
, for the parties and convicted both the appellants u/s 138
  of the Act and sentenced each of them to simple
  imprisonment for three months with a fine of Rs. 3,000/-.
  The appellate court confirmed the conviction, but noticing
  th?t appellant no. 2 was a private limited company and,
                                                                   H
    806      SUPREME COURT REPORTS             [2011] 10 S.C.R.


A thus, could not have been sentenced to imprisonment,
  set aside the sentence of imprisonment qua appellant no.
  2 only. The High Court, in the revision petition, maintained
  the conviction but set aside the final order of sentence
  imposed upon the accused-appellants and remanded the
B matter to the trial court for passing an appropriate order
  of sentence and compensation, if any payable u/s 357 Cr.
  P.C. Aggrieved, the accused filed the appeal.

          Disposing of the appeal, the Court

C      HELD: 1.1. Provision for summary trials is made in
  chapter XXI of the Code of Criminal Procedure, 1973. The
  manner in which record in summary trials is to be
  maintained is provided in s. 263 of the Code. Section 264
  mentions that in every case tried summarily in which the
D accused does not plead guilty, the Magistrate shall
  record the substance of evidence and a judgment
  containing a brief statement of the reasons for the finding.
  Thus, the Magistrate is not expected to record full
  evidence which he would have been, otherwise required
E to record in a regular trial and his judgment should also
  contain a brief statement of the reasons for the finding
  and not elaborate reasons which otherwise he would
  have been required to record in regular trials. [paras 12-
  13] [814-G-H; 815-A-C]
F     1.2. Section 326 deals with part-heard cases, when
  one Magistrate who has partly heard the case is
  succeeded by another Magistrate either because the first
  Magistrate is transferred and is succeeded by another, or
  because the case is transferred from one Magistrate to
G another Magistrate. The rule mentioned in s. 326 is that
  second Magistrate need not re-hear the whole case and
  he can start from the stage the first Magistrate left it.
  However, a bare perusal of sub s. (3) of s. 326 makes it
  more than evident that sub s. (1) which authorizes the
H
NITINBHAI SAEVATILAL SHAH & ANR. v. MANUBHAI 807
          MANJIBHAI PANCHAL & ANR.

Magistrate who succeeds the Magistrate who had              A
recorded the whole or any part of the evidence in a trial
to act on the evidence so recorded by his predecessor,
does not apply to summary trials. The prohibition
contained in sub s. (3) of s 326 of the Code is absolute
and admits of no exception. Where a Magistrate is           B
transferred from one station to another, his jurisdiction
ceases in the former station when the transfer takes
effect. [para 11] [814-C-F]

      1.3. The mandatory language in which s.326 (3) is C
couched, leaves no manner of doubt that when a case
is tried as a summary case, a Magistrate, who succeeds
the Magistrate who had recorded the part or whole of the
evidence, cannot act on the evidence so recorded by his
predecessor. In summary proceedings, the suceessor
Judge or Magistrate has no authority to proceed with the D
trial from a stage at which his predecessor has left it. The
reason why the provisi_ons of sub-ss .. (1) and (2) of s. 326
of the Code have not been made applicable to summary
trials is that in summary trials only substance of evidence
has to be recorded. The court does not record the entire c
statement of witness. Therefore, the Judge or the
Magistrate who has recorded such substance of
evidence is in a position to appreciate the evidence led
before him and the successor Judge or Magistrate cannot
appreciate the evidence only on the basis of evidence F
recorded by his predecessor. Section 326 (3) does not
permit the Magistrate to act upon the substance of the
evidence recorded by his predecessor, the obvious
reason being that if succeeding Judge is permitted to rely
upon the substance of the evidence recorded by his G
predecessor, there wm be a serious prejudice to the
accused and indeed, it would be difficult for a succeeding
Magistrate himself to decide the matter effectively and to
do substantial justice. [para 14) [815-E-H; 816-A·B]
                                                            H
     808    SUPREME COURT REPORTS               (2011] 10 S.C.R.


!A        1.4. The reliance placed by the High Court, on the
     pursis submitted by the appellants before the
     Metropolitan Magistrate declaring that they had no
     objection if matter was decided after taking into
     consideration the evidence recorded by his predecessor-
s    in-office is misconceived. It is well settled that no amount
     of consent by the parties can confer jurisdiction where
     there exists none, on a court of law nor can they divest
     a court of jurisdiction which it possesses under the law.
     [para 15] [816-C-E]
c      1.5. From the language of s. 326(3) of the Code, it is
  plain that the provisions of s. 326(1) and s. 326(2) are not
  applicable to summary trial. Therefore, except in regard
  to those cases which fall within the ambit of s. 326 of the
  Code, the Magistrate cannot proceed with the trial placing
D reliance on the evidence recorded by his predecessor. He
  has got to try the case de novo. In this view of the matter,
  the High Court should have ordered de novo trial. [para
  16] [816-H; 817-A]                  .

E      1.6. The cardinal principal of law in criminal trial is
  that it is a right of an accused that his case should be
  decided by a Judge who has heard the whole of it. As s.
  326 is an exception to the cardinal principle of trial of
  criminal cases, it is crystal clear that if that principle is
F violated by a particular Judge or a Magistrate, he would
  be doing something not being empowered by law in that
  behalf. Therefore, s. 461 would be applicable, which
  shows that the proceedings held by a Magistrate, to the
  extent that he is not empowered by law, would be void;
G and void proceedings cannot be validated u/s 465 of the
  Code. This defect is not a mere irregularity but want of
  competency, and the conviction of the appellants cannot,
  even if sustainable on the evidence, be upheld u/s 465
  of the Code. [paras 16 and 17] [816-F-G; 817-B-C-G]

H
NITINBHAI SAEVATILAL SHAH & ANR. v. MANUBHAI 809
          MANJIBHAI PANCHAL & ANR.

     Payare Lal Vs. State of Punjab AIR 1962 SC 690: (1962        A
(1) Crl LJ 688) - relied on.

     Pu/ukuri Kotayya Vs. Emperor, AIR 1947 P.C. 67 -
referred to
     1.7. Apart from s. 326 (1) and s.326 (2) which are not       B
applicable to the instant case in view of s. 326 (3), the
Code does not conceive of such a trial. Therefore, ~- 465
of the Code has no application. It cannot be called in aid
to make what was incompetent, competent. There has
been no proper trial of the case and there should be one.         C
[para 18] [818-C]         ·

     1.8. The judgment dated 09.08.2010 rendered by the
Single Judge of the High Court upholding the conviction
of the appellants for the offence punishable u/s 138 of the       o
Act is set aside. The matter is remanded to the
Metropolitan Magistrate for retrial in accordance with law,
as early as possible.[para 19] [818-0-G]
                     Case Law Reference:
                                                                  E
    1962 SC.690: (1962           relied on           Para 16
     (1) Crl LJ 688)
    AIR 1947 P.C. 67             referred to         Para 17
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal              F
No. 1703 of 2011.

    From the Judgment & Order dated 9.8.201 O of the High
Court of Judicature at Gujarat in Crl. Revision Application No.
529 of 2003.
                                                                  G
    Amar Dave, P.S. Sudheer, Rishi Maheshwari for the
Appellants.

    Atul Y. Chitale, Nishtha Kumar, Abhijat P. Medh,
                                                                  H
    810      SUPREME COURT REPORTS                  [2011] 10 S.C.R.


IA Hemantika Wahi, Pinky Behra Suveni Banerjee for the
   Respondents.

          The Judgment of the Court was delivered by

          J.M. PANCHAL, J. 1. Leave granted.
B
         2. This appeal by grant of special leave, is directed against
    judgment dated August 9, 2010, rendered by the learned Single
    Judge of High Court of Gujarat at Ahmadabad in Criminal
    Revision Application No. 529 of 2003, by which the conviction
c   of the appellants recorded by the learned Metropolitan
    Magistrate, Ahmadabad in Summary Case No. 2785 of .1998
    under Section 138 of Negotiable Instruments Act, 1881 and
    confirmed by the learned Additional City Sessions Judge, Court
    No. 13, Ahmadabad is maintained but the sentence imposed
0   upon the appellants for commission of said offence is set aside
    and matter is remanded to the learned Magistrate for passing
    appropriate order with regard to sentence and compensation,
    if any under Section 357 of Cr. P.C. within three months, after
    giving the parties reasonable opportunity of being heard.
E      3. The respondent No.1 herein is original complainant. He
  was doing business in the name of Navkar Steel Pvt. Ltd. The
  Complainant is known to the appellant No.1. The appellant No.1
  is the Director of appellant No.2 which is a private limited
  company. It is the case of the complainant that the appellant
F No.1 had borrowed hand loan from him and in order to pay the
  legal dues, the appellant No.1 had given a cheque dated
  October 13, 1998 for the sum of Rs.11,23,000/- drawn on the
  State Bank of India. The cheque was signed by the appellant
  No.1 on behalf of the appellant No.2. The complainant
G presented the cheque for realization in the Central Bank of India.
  The cheque was dishonoured and sent back to the complainant
  with a memorandum dated October 15, 1998 mentioning that
  the cheque was dishonoured because of insufficiency of funds.
  Thereupon, the complainant served a demand notice dated
H October 28, 1998 which was returned unserved as unclaimed
 NITINBHAI SAEVATILAL SHAH & ANR. v. MANUBHAI 811
  MANJIBHAI PANCHAL & ANR. [J.M. PANCHAL, J.]

  on November 5, 1998. Therefore another notice was served by        A
  post under Postal Certificate. The appellants failed to pay the
  amount mentioned in the notice within 15 days from the date
  of receipt of notice. Therefore, the complainant filed complaint
  in the Court of learned Metropolitan Magistrate, Court No.2,
  Ahmedabad on December 15, 1998 and prayed to convict the           B
. appellants under Section 138 of the Act. On the basis of the
  complaint, Summary Case No. 2785 of 1998 was registered
  and after recording verification, !he learned Magistrate had
  issued process.

     4. The complainant examined himself and his witnesses           C
 and also produced documentary evidence in support of his
 case set up in the complaint. The appellants did not lead any
 defence evidence. However, the appellant No.1 in his statement
 recorded under Section 313 of the Code stated that his
 signature was obtained on the blank paper by kidnapping him         D
 and writing was written on it and that false complaint was lodged
 by misusing the signed blank cheque.

      5. After the evidence was recorded by the learned
 Metropolitan Magistrate as stated above, he came to be              E
 transferred and therefore, ceased to exercise jurisdiction in the
 case. He was succeeded by another learned Metropolitan
 Magistrate who had and who exercised such jurisdiction. On
 August 03, 2001, a pursis was filed before the learned
 Metropolitan Magistrate by the appellants as well as the original   F
 complainant i.e. the respondent No.1 herein, declaring that the
 parties had no objection to proceed with the matter on the basis
 of evidence recorded by predecessor in office of the learned
 Metropolitan Magistrate in terms of Section 326 of the Code.
 On the basis of said pursis the learned Metropolitan Magistrate     G
 considered the evidence led by the complainant and heard the
 learned counsel for the parties.

     6. The learned Metropolitan Magistrate by judgment dated
 February 13, 2003, delivered in Summary Case No. 2785 of
 1998, convicted both the appellants under Section 138 of the        H
    812     SUPREME COURT REPORTS                (2011] 10 S.C.R.


A Act and sent.enced each of them to suffer simple imprisonment
  for three months with fine of Rs.3,000/- i/d simple imprisonment
  for 15 days.

       7. Feeling aggrieved, the appellants preferred Criminal
  Appeal No.19 of 2003 in the Court of the learned Additional
8
  City Sessions Judge at Ahmadabad. The learned Judge found
  that conviction of the appellants recorded under Section 138
  of the Act was perfectly just but noticed that the appellant No.
  2 is a private limited company ar;:id therefore, could not have
  been sentenced to simple impri~\lnment for three months.
C Therefore, the learned Additional City Sessions Judge, Court
  No.13, Ahmadabad by judgment dated October 16, 2003
  dismissed the appeal but set aside sentence of simple
  imprisonment of three months imposed upon the appellant No.2
  and maintained the full sentence imposed upon appellant No.1
D as well as sentence of fine of Rs.3,000/- imposed upon the
  appellant No.2.

       8. Dissatisfied with the judgment of the First Appellate .
  Court, the appellants preferred Criminal Revision Application
E No.529 of 2003 in the High Court of Gujarat at Ahmadabad.
  The learned Single Judge by judgment dated August 09, 2010,
  maintained conviction of the appellants under Section 138 of
  Negotiable Instrument Act, but set aside final order of sentence
  imposed upon the appellants and remanded the matter to the
F learned Magistrate for passing appropriate order of sentence
  and compensation, if any payable under Section 357 of the
  Code, within three months, after giving to the parties
  reasonable opportunity of being heard, which has given rise to
  the instant appeal.

G       9. This Court has heard the learned counsel for the parties
    and considered the documents forming part of the appeal.

       1O. Section 326 of the Code deals with the procedure to
  be followed when any Magistrate after having heard and
H recorded the whole or any part of the evidence in an enquiry
NITINBHAI SAEVATILAL SHAH & ANR. v. MANUBHAI 813
 MANJIBHAI PANCHAL & ANR. [J.M. PANCHAL, J.]

or a trial, ceases to exercise jurisdiction therein and is          A
succeeded by another Magistrate who exercises such
jurisdiction. Section 326 of the code reads as under:-

    "326. Conviction or commitment on evidence partly
    recorded by one Magistrate and partly by another: - 8
    (1) Whenever any (Judge or Magistrate] after having heard
    and recorded the whole or any part of the evidence in an
    inquiry or a trial, ceases to exercises jurisdiction therein
    and us succeeded by another [Judge or Magistrate] who
    has and who exercises such jurisdiction, the (Judge of C
    Magistrate] so succeeding may act on the evidence so
    recorded .tfy his predecessor and partly recorded by·
    himself.

    Provided that if the succeeding [Judge or Magistrate] is        o
    of opinion that further examination of any of the witness
    whose evidence has already been recorded is necessary
    in the interests of justice, he may re-summon any such
    witness, and after such further examination, cross-
    examination and re-examination, if any, as he may permit,       E
    the witnes~ shall be discharged.

    (2) When a case is transferred under the provisions of this
    Code [from one Judge to another Judge or from one
    Magistrate to another Magistrate,] the former shall be
    deemed to cease to exercise jurisdiction therein, and to        F
    be succeeded by the latter, within the meaning of sub-
    section (1).

    (3) Nothing in this section applies to summary trials or to
    cases in which proceedings have been stayed under               G
    section 322 or in which proceedings have been submitted
    to a superior Magistrate under section 325."

     11. Section 326 is part of general provisions as to
inquiries and trials contained in Chapter XXIV of the Code. It
is one of the important principles of criminal law that the Judge   H
    814      SUPREME COURT REPORTS                  [2011] 10 S.C.R.


A   who hears and records the entire evidence must give judgment.
    Section 326 is an exception to the rule that only a person who
    has heard the evidence in the case is competent to decide
    whether the accused is innocent or guilty. The Section is
    intended to meet the case of transfers of Magistrates from one
B place to another and to prevent the necessity of trying from the
    beginning all cases which may be part-heard at the time of such
    transfer. Section. 326 empowers the succeeding Magistrate to
    pass sentence or to proceed with the case from the stage it
    was stopped by his preceding Magistrate. Under Section 326
c (1), successor Magistrate can act on the evidence recorded by
    his predecessor either in whole or in part. If he is of the opinion
    that any further examination is required, he may recall that
    witness and examine him, but there is no need of re-trial. In fact
  · Section 326 deals with part-heard cases, when one Magistrate
    who has partly heard the case is succeeded by another
0
    Magistrate either because the first Magistrate is transferred and
    is succeeded by another, or becau~e the case is transferred
    from one Magistrate to another Magistrate. The rule mentioned
    in Section 326 is that second Magistrate need not re-hear the
    whole case and he can start from the stage the first Magistrate
E left it. However, a bare perusal of sub Section (3) of Section
    326 makes it more than evident that sub Section (1) which
    authorizes the Magistrate who succeeds the Magistrate who
    had recorded the whole or any part of the evidence in a trial to
    act on the evidence so recorded by his predecessor, does not
F apply to summary trials. The prohibition contained in sub
    Section (3) of Section 326 of the Code is absolute and admits
    of no exception. Where a Magistrate is transferred from one
    station to another, his jurisdiction cea.ses in the former station
    when .the transfer takes effect.
G
          12. Provision for summary trials is made in chapter XXI
  of the Code. Section 260 of the Code confers power upon any
  Chief Judicial Magistrate or any Metropolitan Magistrate or any
  Magistrate of the First Class specially empowered in this behalf
H by the High Court to try in a summary way all or any of the
NITINBHAI SAEVATILAL SHAH & ANR. v. MANUBHAI 815
 MANJIBHAI PANCHAL &. ANR. [J.M. PANCHAL, J.]

offences enumerated therein. Section 262 lays down procedure       A
for summary trial and sub Section (1) thereof inter alia
prescribes that in summary trials the procedure specified in the
Code for the trial of summons-case shall be followed subject
to condition that no sentence of imprisonment for a term
exceeding three months is passed in case of any conviction         B
under the chapter.

      13. The manner in which record in summary trials is to be
maintained is provided in Section 263 of the Code. Section 264
mentions that in every case tried summarily in which the
 accused does not plead guilty, the Magistrate shall record the C
substance of evidence and a judgment containing a brief
statement of the reasons for the finding. Thus the Magistrate
is not expected to record full evidence which he would have
been, otherwise required to record in a regular trial and his
judgment should also contain a brief statement of the reasons · D
for the finding and not elaborate reasons which otherwise he
would have been required to record in regular trials.

      14. The mandatory language in which Section 326 (3) is
couched, leaves no manner of doubt that when a case is tried       E
as a summary case a Magistrate, who succeeds the Magistrate
who had recorded the part or whole of the .evidence, cannot act
on the evidence so recorded by his predecessor. In summary
proceedings, the successor Judge or Magistrate has no
authority to proceed with the trial from a stage at which his      F
predecessor has left it. The reason why the provisions of sub-
section ( 1) and (2) of Section 326 of the Code have not beeh
made applicable to summary trials is that in summary trials only
substance of evidence has to be recorded. The Court does not
record the entire statement of witness. Therefore, the Judge or    G
the Magistrate who has recorded such substance of evidence
is in a position to appreciate the evidence led before him and
the successor Judge or Magistrate cannot appreciate the
evidence only on the basis of evidence recorded by his
predecessor. Section 326 (3) of the Code does not permit the
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    816      SUPREME COURT REPORTS                   (2011] 10 S.C.R.


A Magistrate to act upon the substance of the evidence recorded
  by his predecessor, the obvious reason being that if succeeding
  Judge is permitted to rely upon the substance of the evidence
  recorded by his predecessor, there will be a serious prejudice
  to the accused and indeed, it would be difficult for a succeeding
B Magistrate himself to decide the matter effectively and to do
  substantial justice.

        15. The High Court by the impugned judgment rejected the
  contention regarding proceedings having been vitiated under
   Section 461 of the Code, on the ground that parties had
C submitted pursis dated August 3, 2009 and in view of the
   provisions of Section 465 of the Code, the alleged irregularity
  cannot be regarded as having occasioned failure of justice and
  thus can be cured. The reliance placed by the High Court, on
  the pursis submitted by the appellants before the learned
D Metropolitan Magistrate declaring that they had no objection if
  matter was decided after taking into consideration the evidence
  recorded by his predecessor-in-office is misconceived. It is well
  settled that no amount of consent by the parties can confer
  jurisdiction where there exists none, on a Court of law nor can
E they divest a Court of jurisdiction which it possesses underlhe
  law.

       16. The cardinal principal of law in criminal trial is that it is
  a right of an accused that his case should be decided by a
F Judge who has heard the whole of it. It is so stated by this Court
  in the decision in Payare Lal Vs. State of Punjab, AIR 1962
  SC 690 : (1962 (1) Crl LJ 688). This principle was being
  rigorously applied prior to the introduction of Section 350 in the
  Code of Criminal Procedure, 1898. Section 326 of the new
G Code deals with what was intended to be dealt with by Section
  350 of the old Code.

       From the language of Section 326(3) of the Code, it Is plain
  that the provisions of Section 326(1) and 326(2) of the new
  Code are not applicable to summary trial. Therefore, except in
H regard to those cases which fall within the ambit of Section 326
NITINBHAI SAEVATILAL SHAH & ANR. v. MANUBHAI 817
 MANJIBHAI PANCHAL & ANR. [J.M. PANCHAL, J.]

of the Code, the Magistrate cannot proceed with the trial                A
placing reliance on the evidence recorded by his predecessor.
He has got to try the case de novo. In this view of the matter,
the High Court should have ordered de novo trial.

      17. The next question that arises is as to from what stage         8
the learned Metropolitan Magistrate Ahmedabad, should
proceed with the trial de novo. As it has been seen that Section
326 of the new Code is an exception to the cardinal principle
of trial of criminal cases, it is crystal clear that if that principle
is violated by a particular Judge or a Magistrate, he would be           C
doing something not being empowered by law in that behalf.
Therefore, Section 461 of the new Code would be applicable.
Section 461 of the new Code narrates irregularities which
vitiate proceedings. The relevant provision is Clause (1). It reads
as follows:-
                                                                         D
          "461. Irregularities which vitiate proceedings:- If any
     Magistrate, not being empowered by law in this behalf,
     does any of the following things, namely;

           xxxxx
                                                                         E
     (1) tries an offender;

           xxxxx

           his proceedings shall be void."
                                                                         F
     A plain reading of this provision shows that the
proceedings held by a Magistrate, to the extent that he is not
empowered by law, would be void and void proceedings
cannot be validated under Section 465 of the Code. This defect
is not a mere irregularity and the conviction of the appellants          G
cannot, even if sustainable on the evidence, be upheld under
Section 465 of the Code. In regard to Section 350 of the old
Code, it was said by Privy Council in Pu/ukuri Kotayya Vs.
Emperor, AIR 1947 P.C. 67 that "when a trial is conducted in
a manner different from that prescribed by the Code, the trial           H
    818      SUPREME COURT REPORTS                  [2011] 10 S.C.R.


A   is bad, and no question of curing an irregularity arises; but if
    the trial is conducted substantially in the manner prescribed, but
    some irregularity occurs in the course of such conduct, the
    irregularity can be cured under Section 537".

       18. This is not a case of irregularity but want of
8
  competency. Apart from Section 326 (1) and 326 (2) which are
  not applicable to the present case in view of Section 326 (3),
  the Code does not conceive of such a trial. Therefore, Section
  465 of the Code has no application. It cannot be called in aid
C to make what was incompetent, competent. There has been no
  proper trial of the case and there should be one.

          19. For the foregoing reasons the appeal succeeds. The
    judgment dated August 09, 2010 rendered by the learned
    Single Judge of the High Court of Gujarat at Ahmadabad in
D   Criminal Revision Application No. 529 of 2003 upholding
    conviction of the appellants for the offence under Section 138
    of the Act is hereby set aside. The matter is remanded to the
    learned Metropolitan Magistrate for retrial in accordance with
    law. The record shows that the appellant No.1 has resorted to
E   dilatory tactics to delay the trial. The appellant No.1 is directed
    to remain present before the learned Metropolitan Magistrate
    when required without fail. If the appellant No. 1 fails to remain
    present before the learned Metropolitan Magistrate, it would be
    open to the learned Metropolitan Magistrate to take necessary
F   steps including issuance of non-bailable warrant for securing
    his presence. Having regard to the facts of the case the learned
    Metropolitan Magistrate is directed to complete the trial of the
    case as early as possible and preferably within five months
    from the date of receipt of the writ from this Court. Subject to
G   above mentioned observations the appeal stands disposed of.

    R.P.                                        Appeal disposed of.