MUSHTAQ ALI AND OTHERS Vs. STATE

JUDGEMENT

(1.) This reference has been made by the learned Additional District Magistrate, Agra, recommending that the order of the Bench Magistrate, Firozabad, convicting the applicants of an offence under Sec. 13 of the Gambling Act and sentencing each of them to a fine of Rs. 25/- and in default to undergo simple imprisonment for 15 days be set aside, on the ground that all the members who constituted the Bench were not present throughout the proceedings. The reference was admitted to a regular hearing by our brother Bishambhar Dayal, J. who directed the papers to be laid before the Honourable the Chief Justice for constituting a larger Bench for consideration as to whether the previous rulings of this Court like Dasrath Rai Vs. Emp A.I.R. 1934 All. 144 : 1934 A.L.J. 376 on the interpretation of Sec. 350-A of Crimial P.C. were still good law in view of the amendment of Sec. 350 of Crimial P.C. by the Criminal Law Amendment Act 1955 and it is in these circumstances that the Reference has been listed up before a Division Bench for hearing.

(2.) It is not disputed that all the members of the Bench of Magistrate who decided the case were not present throughout the proceedings. Sec. 350-A of Cr.P. C. reads as below:-

(3.) It was held that as one of the Honorary Magistrates had not heard the whole evidence and had not been throughout the proceedings and took part in the deliberation and joined the others in arriving at the final decision, there was every likelihood of his influencing his colleagues by virtue of his absence on some of the material dates he became incompetent to form a true opinion on the merits of the case and if he joined in the deliberations, there was likelihood of a failure of justice. The conviction was, therefore, illegal and should be set aside.