SAIYED AHMED Vs. RATAN CHAKLADAR & ORS.

JUDGEMENT

(1.) This Rule is directed against the judgment of acquittal passed by the learned Sessions Judge, Cooch Behar in Sessions Case No. 35 of 1976. The only point that is raised in this case is that the trial is vitiated and accordingly the order of acquittal is bad in law, in view of the fact that the judgement was passed by the learned Sessions Judge on the basis of the evidence recorded by his predecessors in office.

(2.) Mr. Jyotish Chandra Bose, Advocate appearing for the petitioner has submitted before me that the judgement and order of acquittal is without jurisdiction in view of the fact that the learned Judge who passed the judgement and order of acquittal did not record the evidence of the witnesses during the trial but acted upon the evidence recorded by his predecessor and then passed the judgement of acquittal.

(3.) In this connection, Mr. Bose has cited several cases. The first of these cases is reported in 23 Weekly Reporter page 59. In that case the accused was convicted and sentenced in pursuance of a judgment passed by the successor Judge whose predecessor had partly recorded the evidence. It has been held in that case that it is the general principle, that judgment must be delivered by the Judge who has heard the evidence, and the exception is to be found in Sec. 328, (now Sec. 326) of the Code of Criminal Procedure that relates to trials by a Magistrate. In that case it was found that the prisoner's consent was taken to the trial proceedings by the successor judge and it was held that nevertheless the trial was bad and illegal and therefore the same was set aside and retrial was ordered. The next case cited is Pulukuri Kottaya Vs. Emperor, reported in AIR 1947 PC page 67 . That decision relates to violation of Sec. 162 of the Code of Criminal Procedure. The entries in the Police Sub-Inspector's notebook was not made available to the accused as they should have been, for the cross-examination of the witnesses in court and thereby there was a breach of the provisions of Sec. 162 of the Code of Criminal Procedure. It has been held by their Lordships in that case that only the errors of procedure arising out of mere inadvertence and not cases of disregard of or disobedience to mandatory provisions of the Code could be cured under Sec. 537 of the Code of Criminal Procedure. When a trial is conducted in a manner different from that prescribed by the Code the trial is bad and no question of curing an irregularity arises ; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under Sec. 537 and none-the-less so because the irregularity involves as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. It was found that in that case that the irregularity complained of was held to be cured by Sec. 537 of the Code of Criminal Procedure and accordingly the trial was held to be valid notwithstanding the breach of Sec. 162 of the Code of Criminal Procedure. The third case cited is Adan Haji Jama Vs. The King, reported in AIR 1943 PC page 63 . That was a prosecution under Administration of Criminal Justice Ordinance (1926) Hyderabad under Sections 226, 393, 236 and 413 of that Ordinance. The trial was with the aid of assessors and the trial started in absence of the Public Prosecutor contrary to the provisions of Sec. 226 of that ordinance. The Judge examined the prosecution witnesses and summed up the evidence. The trial was held to be vitiated for breach of Sec. 226 and accordingly the conviction was quashed and the accused were acquitted. The next case cited is Munshi Lal Vs. Emperor reported in AIR 1948 Allahabad page 278 where the principles laid down in AIR 1927 PC page 44 and AIR 1948 PC page 63 have been explained and affirmed. In Sec. 537 of the Cr. P. Code there is no distinction between illegality and irregularity. Both are curable under that section. The sole criterion is whether by the defect prejudice was caused to the accused. The revisional application was dismissed in that case.