SITARAM SAHU Vs. STATE

JUDGEMENT

(1.) This application arises in the following circumstances. After the commitment proceedings the petitioner was sent up for trial by the court of session on a charge under Section 408 of the Indian Penal Code. The sessions trial was taken up by Sri Harnandan Prasad Singh, first Assistant Sessions Judge of Muzaffarpur. The learned Judge recorded the evidence of all the prosecution witnesses, who were 32 in number; and after the petitioner entered into defence the same learned Judge examined four of the defence witnesses. One of the defence witnesses was left to be examined. At that stage unfortunately Shri Harnandan Prasad Singh died, and in due course he was succeeded by another Assistant Sessions Judge Sri S. M. Prasad. Before Sri S. M. Prasad a question was raised on behalf of the petitioner that he should proceed with the trial from the stage at which it had been left by Sri Harnandan Prasad Singh. The learned Assistant Sessions Judge did not accede to this contention and decided to hold the entire trial de novo.

(2.) The question is whether the learned Assistant Sessions Judge has taken a correct view of the matter.

(3.) The only provision of the Code of Criminal Procedure upon which the petitioner could rely is that contained in section 350 of the Code. But, as the section itself makes it clear, it relates to a case which has been tried in part by a Magistrate. It has no application to a case where a part of the trial has been conducted by a Sessions Judge. As pointed out by a Bench of this Court in Ramchandra Naik v. Emperor, AIR 1947 Pat 428, Section 350 if in the nature of an exception to the general rule that a judgment must be pronounced by the Judge, who has heard the evidence. This section does not refer to cases tried by Sessions Judges or Assistant Sessions Judges. It has further been pointed out in that case that a Sessions Judge is not competent to pronounce judgment on evidence recorded by his predecessor or on evidence partly recorded by his predecessor and partly by himself and that whether the accused persons consent to such a procedure, or not will make no difference in the legal position.