SURAT BOROUGH MUNICIPALITY Vs. NAGINDAS MAGANLAL

JUDGEMENT

(1.) This reference raises a question of procedure of some importance. The facts leading up to the reference -are shortly those.

(2.) One Nagindas Maganlal was prosecuted before the Stipendiary Thirst Class Magistrate. Surat, for an offence under Section 4 (l) (b), Bombay Prevention of Adulteration Act, 193-5. Upon the evidence adduced, the learned Magistrate convicted the accused under Section 4 (l) (b) of the Act and sentenced him to pay a fine of Rs. 50, in default, to suffer simple imprisonment for fifteen days. From that order of conviction and sentence, the accused made an application in revision before the Sessions Court, Surat, and the learned Additional Sessions Judge 1ms made this reference, asking that the conviction and the sentence recorded against the accused should be set aside and that the accused should he re-tried for the same offence. In coming to this conclusion, the learned Additional Sessions Judge considered that there was an illegality in the proceedings, because the case which was a summary case was tried partly by Mr. Soloman who was succeeded by Mr. Patel who subsequently heard the evidence and recorded the conviction against the accused. The learned Judge referred to the relevant sections contained in the Code of Criminal Procedure and also referred to relevant decisions upon that point, lie referred to Emperor v. Ghimanlal, 29 Bom. L. R. 710, to In re Tip panna, 36 Bom. L,. R. 212, to Emperor v. Hemandas, A. I. R. 1936 sind 40 and to Emperor v. Durgaprasad, A. I. R. 1940 Nag. 239.

(3.) The facts of the case lie, I think, within a narrow compass. It appears that Mr. Soloman, when the proceedings commenced before him, recorded the evidence of the complainant and took the statement of the accused. After ho was transferred and succeeded by Mr. Patel, Mr. Patel subsequently recorded evidence which was led on behalf of the defence and Mr. Patel recorded tho conviction both upon the evidence recorded by him and upon the notes of evidence kept by his predecessor.