DASRATH RAI Vs. EMPEROR

JUDGEMENT

(1.) This is a criminal references by the Sessions Judge of Azamgarh recommending that the conviction of the accused persons should be set aside and a retrial ordered. It is not necessary to state the facts of the case itself, us for the purpose of the reference it will be Quite sufficient to stats what happened in the proceedings. At Azamgarh three Honorary Magistrates constituted a Bench which had power to try this case. On most of the hearings, all the three Honorary Magistrates were present, but on 5 December 1932 one of them was absent. The case however was not taken up on that day and was adjourned. On 8th December 1932, the next day of hearing, one of the Honorary Magistrates happened to be absent. He rejoined on the next date and then continued to be present all along and ultimately took part in delivering and signing the judgment. On the 8 of December, when one of the Magistrates was absent, some witnesses ware examined and cross-examined. All the three Honorary Magistrates unanimously came to the conclusion that the accused were guilty and convicted them. Their appeal was dismissed by a Magistrate of the First Glass. On revision a point was raised before the learned Judge that inasmuch as one of the Honorary Magistrates was absent on one day, the whole trial was vitiated and the conviction could not stand. It is on this point that the case has been referred to the High Court. It came up before a Single Judge of this Court who has referred it to a Division Bench.

(2.) Under Section 15, Criminal P.C., the Local Government may direct any two Magistrates to sit together as a Bench and they exercise the powers of a Magistrate of the highest class to which any one of its members belongs. Section 16 empowers the Local Government or the District Magistrate (subject to the control of the Local Government) to make rules for the guidance of such Benches in respect of the constitution of the Bench for conducting trials, among other matters. For Azamgarh, a Government notification was issued on 5 October 1926 under which it was provided that two of these three Honorary Magistrates shall form a quorum. It is therefore not disputed that any two of the three Honorary Magistrates if present, would constitute the Bench and would be empowered to try the ease. Prior to 1923 there was some conflict of opinion as to what would be the effect if one of the members of such a Bench were absent on some of the hearings. The legislature has how intervened and added Section 350- A. It provides that: No order or judgment of a Bench of Magistrates shall be invalid by reason only of a change having occurred in the constitution of the Bench in any case in which the Bench by which such order or judgment is passed is duly constituted under Secs.15 and 16, and the Magistrates constituting the same have been present on the Bench throughout the proceedings.

(3.) We are not now concerned with the trend of rulings prior to this addition, but there are three recent cases of this. Court in which this added section has been interpreted. The case of Chiteshwar Dube V/s. Emperor was somewhat similar to the present ease, inasmuch as one of the three Magistrates had been absent on a few occasions but was present at the time of the delivery of the judgment. The learned Judge set aside the conviction and ordered a retrial. So far as the facts go there can be no question that the conclusion was right. But there are certain observations in the judgment which have been strongly relied upon by the learned advocate for the accused. The learned Judge accepted the view of the Sessions Judge that the presence of all the Magistrates constituting the Bench on all the hearings was indispensable for a valid trial of a ease pending before it and observed at p. 42 (of 1932 A.L.J.) that the concluding part of Section 350-A makes it perfectly clear that all the Magistrates for the time heir constituting the Bench must take part in the proceedings though, if during the pendency of the case the personnel of the Bench undergoes a change, the new member can replace an outgoing member without necessitating a fresh trial.