JUDGMENT Zia-ul-Hasan, J. - These are two references by the learned Civil and Sessions Judge of Lucknow recommending that the orders of conviction passed by a Special Magistrate in two cases tried by him be set aside. 2. A complaint under Sections 147 and 323 I.P.C. was filed by Panna Lal and Jugal Kishore against Beni Madho and eight others and this case was registered as No. 116. Another complaint u/s 323 I.P.C. was filed by Basant Rai against the same Beni Madho and Parshotam Das and this case was No. 118. Two cross-complaints were filed by two of the accused in case No. 116 against Panna Lal, Jugal Kishore and a third person. One of these was filed by Kalyan Das under Sections 504 and 506 I.P.C. and in this case one Bithal Das was co-accused with Panna Lal and Jugal Kishore. The other was filed by Nand Kishore u/s 323 and the third accused in this case besides Panna Lal and Jugal Kishore was one Kandhai Lal. All these four cases were tried by a learned Special Magistrate who acquitted the accused in Kalyan Das and Nand Kishore's complaints but convicted the accused in cases Nos. 116 and 118. In the former the accused were sentenced to a fine of Rs. 50 each and in the latter to a fine of Rs. 20 each. 3. The learned Civil and Sessions Judge has referred cases Nos. 116 and 118 to this Court on the ground of certain alleged illegalities by the learned Magistrate in the course of the trials. 4. I have heard the learned Counsel for both parties and am of opinion that the references should be accepted. In the first place the learned Magistrate examined two witnesses Ram Das and Lachhman Prasad u/s 540 Cr. P.C. after the parties had closed their evidence, arguments bad been heard and a date fixed for the pronouncement of judgment. No doubt the provisions of Section 540 are very wide and a witness can be summoned and examined by the Court at any stage of an enquiry or trial, still it is not proper to examine witnesses under that section after a case is practically finished and without examining the accused again u/s 342 Cr. No doubt the provisions of Section 540 are very wide and a witness can be summoned and examined by the Court at any stage of an enquiry or trial, still it is not proper to examine witnesses under that section after a case is practically finished and without examining the accused again u/s 342 Cr. P.C. It was argued on behalf of the complainants that Section 342 (1) makes it obligatory On the Court to examine the accused only ' once, namely after the witnesses for the prosecution have been examined and before the accused is called on for his Defence and that it was not necessary for the Magistrate to examine the accused in these cases again after he had examined the witnesses u/s 540. This is no doubt true but the first portion of Section 342 (1) gives the Court power to examine the accused at any stage of an inquiry or trial for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him and as the witnesses u/s 540 were examined at the end of the case, the learned Magistrate would have exercised a proper discretion if he had recorded" the statements of the accused again after examining those witnesses. The Calcutta case of Natabar Ghose Vs. Adya Nath Biswas, AIR 1923 Cal 690 was very similar to the present cases. There also after both sides had closed their cases and after arguments had been heard and a date fixed for delivery of judgment, two witnesses who were named by the prosecution were examined before the Magistrate. It was held by a Bench of the Calcutta High Court that the procedure adopted by the Magistrate was entirely unjustifiable and the sentences were set aside. 5. In the cases before me not only did the learned Special Magistrate examine u/s 540 the witnesses who had been named by the prosecution after the close of the cases without putting any questions to the accused after their ' examination but be committed some other illegalities also. The witnesses mentioned above were examined in case No. 116 but their evidence was considered in case No. 118 also. The witnesses mentioned above were examined in case No. 116 but their evidence was considered in case No. 118 also. Lachhman Prasad's evidence appears not to have helped the case of either party but the learned Magistrate has fully relied on the evidence of Ram Das in case No. 118 -and says- I have no reason to disbelieve Ram Das witness. 6. Then in case No. 116 he has utilized the evidence of one Damodar Das who was not examined in the Case at all but was a witness for the Defence in one of the cross cases. Lastly in case No. 118 he has also relied on the allegations contained in the cross-complaint without a copy of that complaint having been brought on the record of the case and proved. At one place be says- When I look into the complaint of Nand Kishore in the connected case I find the complainant not only admitted to be present at the spot but also accused of having actually threatened and abused the complainants' party.... After this allegation in the complaint filed by the accused in another case how can it be believed that Basant Rai has filed a false complaint to save his son-in-law. 7. At another place he says- "Even if I do not take into consideration the police report, the medical certificate, the extrajudicial confession to Girdhari Lal and the statements of Panna Lal and Bishambhar Nath, bow can I ignore the statement of Ram Das and the own allegations against the complainant in their own complaint by the accused which mention in unambiguous terms that the complainant Basant Rai did take part in the quarrel if not by beating at least by threatening and abasing the accused." 8. All this shows that the learned Magistrate was influenced in the case to a great extent by the evidence which was no part of the case before him. 9. It was argued that no prejudice is shown to have been caused to the accused by the procedure adopted by the learned Magistrate and that that procedure only showed an irregularity that can be covered by Section 537 Or. P. C. I cannot however accept this argument. 9. It was argued that no prejudice is shown to have been caused to the accused by the procedure adopted by the learned Magistrate and that that procedure only showed an irregularity that can be covered by Section 537 Or. P. C. I cannot however accept this argument. In the first place the very use of evidence which is not part of the record is by itself proof of prejudice to the accused and in the second place, it has been held by various High Courts that the use in a case of evidence produced in another case is not a mere irregularity but an illegality, vide e. g., the cases of Mrs. M. Waugh v. Emperor (1940) 41 Or.L.J. 247 (Cal); In re: M. Mounagurusqrni Naicker (1939) 34 Cr.L.J. 175 and Sarju v. King Emperor 1938 OWN 958 : 1938 Cr. Rep. 137 : AIR 1938 Oudh 249. 10. I am therefore definitely of opinion that the judgment of the learned Special Magistrate in both the cases must be set aside. The question however is whether or not the cases should be re-tried. The learned Counsel for the accused urges that as the parties are related to each other, the complaints were trivial and the cases have been going on for several months, no retrial should be ordered. On the other hand I take into consideration the facts that the complainants are very keen in opposing the references made by the learned Civil and Sessions Judge and that the illegalities committed by the learned Magistrate in the course of the trial do not necessarily show that his final order was wrong. 11. I, "therefore, accept the references in both the cases, set aside the orders of conviction and order that the cases be retried by a Magistrate other than Mr. Bhagwan Charan, Special Magistrate.