ORDER Braund, J. - This involves a recommendation made in a reference to this Court by the learned Sessions Judge of Saharanpur. It is a smlall matter in itself, but is important and interesting as of general application. The facts are very short and simple. Four men were tried on charges under Ss. 325 and 448, Penal Code, by a Bench of Magistrates. The proceedings began on 13-3-1944 before a Bench of two Magistrates, namely, Messrs. Jagmandar Das and Syed Hasan Abbas. No one has suggested that that Bench of two Magistrates was not well constituted and competent to hear the case. The proceedings, however, continued through March and April 1944 and on 26th April 1944, a third Magistrate, Mr. Jagat Ram, was added to the Bench not in succession to any other Magistrate who had ceased to exercise jurisdiction in the case, but simply as an addition to the strength of the Bench. That is important. Mr. Jagat Ram took his seat on this Bench on 26th April. The hearings in the case proceeded and ultimately all three of the Magistrates joined in passing an order or judgment on 4-7-1944. There is one further slight complication, namely, that it is alleged that on 26th April and 17th May one other of the three Magistrates, namely, Jagmandar Das, was not present at the hearing. I shall accept that fact as being true. In due course the accused were convicted and went in revision before the learned Sessions Judge of Saharanpur. The Judge has found-and in this I agree with him-that Jagmandar Das was absent from the Bench on 26th April and 17th May, while Jagat Ram did not join it until the 26th April and accordingly was not present at any hearing before that date. In view of those circumstances he has recommended to the High Court that the conviction should be set aside. 2. The point is an interesting one and it turns on SS. 16, 350 and 350A, Criminal P.C. together with Rule 3 of the Rules for the guidance of Benches of Honorary Magistrates to be found in paragraph 814 of the Manual of Government Orders. 3. Section 16, Criminal P.C. gives the District Magistrate subject to the control of the Provincial Government, power to make rules consistent with the Code for the constitution of Benches of Magistrates for conducting trials. 3. Section 16, Criminal P.C. gives the District Magistrate subject to the control of the Provincial Government, power to make rules consistent with the Code for the constitution of Benches of Magistrates for conducting trials. Under these rules it must be assumed that the District Magistrate of this particular district made Rule 3 which is set out at page 814 of the Manual of Government Orders, that is to say: 3. The Bench may hold one or more adjourned sittings, if this be found necessary, for the disposal of business on of part-heard cases: provided that if any case is adjourned, and the members at the adjourned session are not the same as sat at the first hearing of the case, the provisions of S. 350, Criminal P.C. will be held to apply to the case. 4. In my judgment we have to start the discussion by considering S. 350A of the Code. That section says 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 Ss. 15 and 16, and the Magistrates constituting the same have been present on the Bench throughout the proceedings. 5. Now, that is a section which deals with those cases in which there has been "a change .... in the constitution of" a duly constituted Bench. It sets out the conditions which have to be complied with in order that a judgment or order of such a Bench, that is to say, a Bench the constitution of which has been changed, may be saved from "invalidity." It is to be noticed that what S. 350A saves the order or judgment from is not mere "irregularity," but actual "invalidity." The conditions laid down by S. 350A are stringent and the concluding words make it quite certain that no such order or judgment will be saved from "invalidity" in a case in which the Magistrates constituting the Bench-i.e., the Magistrates constituting the Bench making the order or delivering the judgment-have not been present on the Bench throughout the proceedings. It would seem to be an inevitable inference to be drawn from S. 350A that any order or judgment which is not saved thereunder will be invalid. It would seem to be an inevitable inference to be drawn from S. 350A that any order or judgment which is not saved thereunder will be invalid. We start with the assumption on general principles that a Bench or Court hearing a case will remain constant until that case is finished. It would seem, therefore, that S. 350A is a saving section, and accordingly that, where not saved, the ordinary principles will apply. I have been referred to the Bench case in this Court of Dasrath Rai and Others Vs. Emperor Dasarath Rai v. Emperor In that case Sir Shah Mohammad Sulaiman took the same view of the effect of S. 350A, Criminal P.C. and treated it as a saving section. In other words, those cases which did not come within the four corners of S. 350A were not "saved." But there is one respect in which, with great deference, I have a little difficulty in following the reasoning of the learned. Chief Justice. He held that a change in the constitution of the Bench during the proceedings and in a case in which all the Magistrates constituting the Bench had not been present throughout the proceedings, produced a mere "irregularity." I have with respect some difficulty in following this. It seems to me, that by reason of the use of the word "invalid" in the second line of the section, it must mean that everything which is not made valid by the section shall remain, not merely irregular, but "invalid." Sir Shah Mohammad Sulaiman has pointed out, and again with respect I entirely agree with him, that the only possible Base to which S. 350A can reasonably be applied is that case in which there has been a subtraction from the strength of the Bench during the course of the proceedings. It cannot apply to a case in which there has been either a substitution or an addition in or to the composition of the Bench since in that case it could never happen that the Magistrates constituting the Bench at the time of the delivery of the order or judgment had been present throughout. That condition, which after all is the most important condition of the whole section, can only be complied with where there has been a substraction from the the strenth of the Bench. 6. That condition, which after all is the most important condition of the whole section, can only be complied with where there has been a substraction from the the strenth of the Bench. 6. Reverting, therefore, to the present case I entertain no doubt that it is not one which is covered by S. 350A. Mr. Jagat Ram joined the Bench half way through the proceedings and it can never be said in that case that the Magistrates constituting the Bench which passed the judgment or order in question were present on the Bench throughout the proceedings. 7. It is nest suggested that the present order may be saved by S. 350, Criminal P.C. In terms S. 350 has no reference to the present case at all, since it is not a case in which any Magistrate ceased to exercise jurisdiction in the case and has been succeeded by another Magistrate. But it is said that S. 350 is made applicable by Rule 3 of the Rules referred to above. In my opinion, this is not so. I have already set out Rule. 3 above. It purports to prescribe what is to happen where "any case is adjourned and the members at the adjourned sessions are not the same as sat at the first hearing of the case ... in other words, where there has been a change in the composition of the Bench. And it purports in every such case to make the provisions of S. 350, Criminal P.C. applicable. In other words it purports to introduce S. 350 into all cases in which the composition of the Bench at a subsequent hearing is not the same as the composition of a Bench at a previous hearing. That can be put in another way by saying that it usurps the functions of S. 350A. As I have explained, S. 350A, Criminal P.C. sets out those cases -and those cases only-in which judgments or orders are to be saved from invalidity. Section 350A is part of the Cr. P.C. itself; and, notwithstanding that R. 3 of the Rules is made under S. 16 of the Code, it is not I think open to the rule to vary the substantive sections of the Code, because the rules must be consistent with the Code. Section 350A is part of the Cr. P.C. itself; and, notwithstanding that R. 3 of the Rules is made under S. 16 of the Code, it is not I think open to the rule to vary the substantive sections of the Code, because the rules must be consistent with the Code. If R. 3 were taken literally, then it would apply S. 350 to a case of the addition of a member to the Bench during the pendency of the proceedings. That would at once bring it into conflict with S. 350A, as Sir Shah Mohammad Sulaiman has construed that section. There would then be produced a repugnancy between the Rule and the section to which the Rule must necessarily yield. 8. For these reasons, which I have set out at some length, I propose to accept this reference and to set aside the order of the Magistrates and to direct that the applicants be acquitted and the fines, if paid, refunded. I have only to add that I have also been referred to a case of a single Judge in this Court in Har Narain and Others Vs. Emperor, AIR 1943 All 20 Har Narain v. Emperor in which it is possible that there are passages which are not wholly in agreement with the views expressed above.