JUDGMENT Desai, J. - The applicants were tried Under Sections 447 and 352 I.P.C. by a bench of honorary magistrates, consisting of three magistrates, Shri Murari Lal Gupta, Shri Karan Singh and Shri Ram Sharma. Shri Karan Singh did not attend the case on two hearings when evidence was recorded. All the three magistrates took part in the deliberations preliminary to the passing of judgment. All the three passed the judgment also. Shri Murari Lal Gupta and Shri Karan Singh passed a judgment of conviction while Shri Shri Ram Sharma passed a judgment of acquittal. The court convited the applicants in accordance with the majority opinion. They appealed to the Assistant Sessions Judge who set aside the judgment of the court and remanded the case for retrial on the ground Shri Karan Singh not having heard the case through all its proceedings was not entitled to take part in the deliberations of the court and in passing a judgment. The applicants went up in rivison against this order of retrial to the Sessions Judge who declined to substitute an order of acquittal for the order of retrial. So they have come up to this Court. 2. There is nothing to be said in favour of the applicants on facts. They have come up in revision and not in appeal and I would not be a party to the conversion of revisional proceedings into an appeal. The legislature has prohibited an appeal against the judgment of the learned Assistant Sessions Judge and I would be evading the law if I were to hear the revision application as if it were an appeal, Mr. S.B.L. Gaur, learned Counsel for the applicants, addressed me at some length on the facts but failed to convince me that the findings of the courts below on the facts were so perverse that they ought to be set aside even in revision. They are backed by evidence and evidence which could reasonably have been believed; that is sufficient for taking no notice of the arguments based on the facts. 3. It is contended by the applicants that the judgment of Shri Karan Singh should be ignored, that the remaining two magistrates having given dissenting judgments, the judgment of acquittal should stand and that the order of retrial should be superseded by an order of acquittal. 3. It is contended by the applicants that the judgment of Shri Karan Singh should be ignored, that the remaining two magistrates having given dissenting judgments, the judgment of acquittal should stand and that the order of retrial should be superseded by an order of acquittal. The Code of Criminal Procedure does not contain any provision dealing with the effect of the absence of one of the bench magistrates on a date on which some evidence is recorded. Instead of enacting a provision it has empowered the Provincial Governments, or subject to their control, the District Magistrates, to make rules consistent with the Code for the guidence of magistrate's benches respecting certain subjects including the Constitution of the bench for conducting trials and the mode of setting differences of opinion which may arise between magistrates in session. The United Provinces Government have not made any rules in exercise of this power; instead they have framed model rules and recommended them to the District Magistrates for general adoption. The rules are contained in para 814 of the Manual of Government Orders. The note at the beginning of the rules makes it clear that it is for the District Magistrates to issue the rules u/s 16 of the Code. Rule 3 is as follows: X X X if any case is adjourned, and. the members at the adjournned sessions are not the same as sat at the first hearing of the case, the provisions of Section 350 of the Code of Criminal Procedure will be held to apply to the case. 4. Rule 7 is as follows: Each member of the bench shall have a voice in the finding and sentence, which shall be signed by the Chairman and by the members present. In regard to the finding, when the number of members is uneven, the opinion of the majority shall prevail; when the number is even and the members are equally divided, the accused shall get the benefit of the doubt. 5. I got an inquiry made from the District Magistrate, Meerut, after hearing the arguments and am now informed by him that no rules for the guidance of Benches have been framed (or adopted) in the district. After this information there is no scope for presumption, about the rules in para. 814 being adopted by the District Magistrate, which was resorted to in E. v. Kesri, 48 Cr.L.J. 431. After this information there is no scope for presumption, about the rules in para. 814 being adopted by the District Magistrate, which was resorted to in E. v. Kesri, 48 Cr.L.J. 431. and Har Nurain v. Surey, ILR 1943 All. 23. The position now is that there exist no rules to deal with differences of opinion among Bench Magistrates. If the Magistrates are not equally divided, it may be said that the judgment of the Court should be in accordance with the finding of the majority. Difficulty is caused when they are equally divided. Mr. S.B.L. Gaur suggested that if they are equally divided, the Court should acquit the accused on the ground of benefit of doubt. It is undoubtedly a plausible argument that when two Magistrates constituting a Court are of different minds about the accused's guilt, the Court is of two minds about his guilt, i.e., is doubtful about it and should give the benefit of the doubt to him. The suggestion has the support of an observation of a learned Judge of this Court in Kashi Nath v. Shanbar, 16 Cr.L.J. 113. to the effect that in the absence of rules made by Government or the District Magistrate, the Bench Magistrates might well have accepted the principle laid down by the local government and passed orders accordingly. 6. The adoption of the suggestion, however, is not free from difficulty because the Court does not recognise as a principle of universal application the principle that where two Judges differ about the guilt, the accused should be acquitted. Section 429 does not follow this principle when two Judges of a High Court hearing an appeal from a capital sentence are divided in opinion ; instead of directing that the appeal should be allowed and the accused should be acquitted, it requires the case to be laid before a third Judge. In the absence of a rule, a Bench of Magistrates equalle divided in its opinion about the guily cannot acquit the accused just because the Government have recommended the adoption of a rule containing such a course. The correct order for the Court to pass in such a contingency is to adjourn the case and have it retried before a reconstituted Court. The adjournment is justified u/s 344. This is the course suggested in Kinnis v. Graves, (1898) 67 L.J.Q.B.D. 583 and Bagh v. Colquhun, (1904) 1 K.B. 554. The correct order for the Court to pass in such a contingency is to adjourn the case and have it retried before a reconstituted Court. The adjournment is justified u/s 344. This is the course suggested in Kinnis v. Graves, (1898) 67 L.J.Q.B.D. 583 and Bagh v. Colquhun, (1904) 1 K.B. 554. Section 16 of the Summary Jurisdiction Act of 1848, formerly known as "Jervis 'Act", allow adjournment at the discretion of the Court just like Section 344 of our Code. In the present case two Magistrates were for conviction and the third was for acquittal. I have discussed above question because it was contended by Mr. S.B.L. Gour that the only effect of Shri Karan Singh's not having heard the entire ease would be that his judgment well be ignored and that there Will remain two judgments, one of acquittal and the other of conviction, and that the judgment of the Court should be of acquittal. My view is that if the effect of Shri Karan Singh's not having heard the entire case is that (only) his judgment would be ignored, the applicants are not entitled to be acquitted on the ground of benefit of doubt. 7. There is no provision in the Code (or in the rules contained in paragraph 814 of the Manual of Government Orders) to the effect that if a Magistrate is absent from a bench on one date on which some evidence is recorded, he cannot take part in the deliberations of the court and in passing a judgment or that if he passes, a judgment his judgment will be invalid. Sections 15 and l6 which deal with benches are completely silent. Section 350 deals with a Magistrate's acting on the evidence recorded by another Magistrate but it does not deal with temporary absence of a Bench Magistrate on a date on which a case is heard. It provides for the contingency in which a Magistrate dies resigns or is transferred and the part heard case goes before another Magistrate as his successor. It does not provide for the contingency in which one Bench Magistrate remains absent on one date and attends the court on another date. It provides for the contingency in which a Magistrate dies resigns or is transferred and the part heard case goes before another Magistrate as his successor. It does not provide for the contingency in which one Bench Magistrate remains absent on one date and attends the court on another date. If in a Bench there are three Magistrates, A, B and C, and on one date only B and C are present and record evident, the question of A's acting upon that evidence is not governed by Section 350 because he is not A successor of B and C and B and C have not ceased to have jurisdiction over the case; see Hardwar Singh v. Khega Ojha, ILR Cal. 870. 8. There is another Section 350(A), added in the Code in 1923. It is peculiarly worded and its wording has caused some trouble. It lays down that no "judgment of a Bench of Maigstrates shall tie 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 ***and the Magistrates constituting the same have been present on the Bench throughout the proceeding. 9. This section deals with a case in which the constitution of the Bench under went a change and yet the Magistrates constituting it have been present on the Bench throughout the proceedings It is difficult to understand what was the intention of the legislature behind the enactment of this section, because its practical utility is almost nil. As observed in Dasarath Rai v. Emperor, 152 I.C. (1934) All 717, this section can apply only where there is a reduction in the number of Magistrate during the hearing of a case. If inspite of a change in the constitution of the Bench the Magistrates who passed the judgment have been present throughout the proceedings in a case, the change must have been occasioned only by a reduction. In the number. 10. By the application of the maxim "expressio unus est exclusio alerius" it has been held in some cases that if a change occurs in the constitution of a Bench and the judgment is passed by Magistrates who were not present on the Bench throughout the proceedings, the judgment is invalid. In Fulker v. Fulkere, (1936) 3 All. 10. By the application of the maxim "expressio unus est exclusio alerius" it has been held in some cases that if a change occurs in the constitution of a Bench and the judgment is passed by Magistrates who were not present on the Bench throughout the proceedings, the judgment is invalid. In Fulker v. Fulkere, (1936) 3 All. E.R. 636-38, Sir Boyd Merriman found it "impossible to upheld an order based, as this was, on evidence which had never been heard at all viva voce by two of the Judges, but based upon a mere reading of the note of the witnesses' evidence heard by two members of the Court in that form for the first time ". 11. In Re-Guerin (1888) 58 L.J.C. 42, Wills J. laid down that the judicial discretion which a Magistrate has to excerise on cases brought before him must be based on the evidence taken before him and that it is a rule of natural justice. In Rex v. Bertrand (7867) 16 L.T.R. (NS) 752. Sir J.T. Coleridgestated, at page 754, that notes of the evidence recorded by another Magistrate are: the dead body of the evidence, without its spirit, which is supplied when given openly and orally, by the ear and the eye of those who receive it. 12. This principles has been followed in Hardwar Singh v. Khegu, ILR Cal. 870, Q.E. v. Basappa, 18 Mad 391, Bamri v. Bhawani, 23 Cal. 194, Girdhari v. E.,2 Lahore 337 E.C. 13. If a Magistrate, who has not heard the entire evidence takes part in the deliverations and the judgment of the Court, it is to be seen whether it renders the whole trial invalid or only his judgment is to be ignored. Though it has been asserted in Qabool V. Chajju, 49 Cr. L.J. (All. 1948) 77 (sic) that it is not a matter of mere irregularity but of a defect in jurisdiction, I am of the view that no question of jurisdiction is involved. Suppose a cage was heard by Magistrates A and B on one date and was taken up on the next date by Magistrates B and C. If the quorum is of two Magistrates, there was a legally constituted Court on the next date and it had jurisdiction to take up the case. 14. Suppose a cage was heard by Magistrates A and B on one date and was taken up on the next date by Magistrates B and C. If the quorum is of two Magistrates, there was a legally constituted Court on the next date and it had jurisdiction to take up the case. 14. No body can deny that if it held de novo trial, it would be perfectly valid This proves that the Magistrates B and C had jurisdiction to take up the case on the next day. They could not lose the jurisdiction if, instead of holding de novo trial, they continued the trial from the stage at which it was left by A and B. Their proceedings may be irregular and the judgment pronounced by them may have to be set aside, but it would be on grounds other than of want of jurisdiction. In some cages it has been held that if a Magistrate who had not heard the entire evidence did not take part in the deliberations and the judgment of the Court, the judgment was not vitiated by any defect; this also shows that there is no question of jurisdiction at all. In Chitecshwar(sic) Dube v. E. AIR 1932 AH. 127, a learned Judge of this Court took the, view that if a Magistrate who was absent on a previous date is present on the Bench on a subsequent date, the Bench is not properly constituted. That view was dissented from in Dasrath Raj v. E., 152 I.C. (1934) All 717, with which I am in agreement. 15. If the question is not of jurisdiction, it is one of irregularity which, if it does not cause any prejudice to either party, is cured by Section 537 of the Code. To avoid prejudice, it is necessary that the judgment of the Magistrate who had not heard the entire evidence must be ignored; he must be treated as having taken no part in passing the Court's judgment. Even when this is done, there still remains the fear that he might have influenced the other Magistrates during the deliberations of the Court. One can ignore his judgment as if it did no exist, but one cannot always treat him as if he had not taken any part in the deliberations. Even when this is done, there still remains the fear that he might have influenced the other Magistrates during the deliberations of the Court. One can ignore his judgment as if it did no exist, but one cannot always treat him as if he had not taken any part in the deliberations. The possibility of one Magistrate's influencing the judgment of another during the deliberations has been recognised in Ram Khelawan Vs. Sheo Nandan and Others , and Dasrath Rai v. E. 152 I.C. (1934) All. 717, A Magistrate can influence another only by bringing him round to his own view. If two Magistrates differ in their views, it cannot be said that one was influenced by the other. If the Magistrate, who did not hear the entire case, failed to influence another Magistrate or even if he succeeded in influencing one or more that influence was of no effect at all, it means that there has been no prejudice. What one must consider is the effective judgment of the Court (i.e. of the Magistrates who had heard the entire case) or the judgment that would prevail. If the Magistrates unanimously pass a judgment, it is effective. If they are divided unequally the judgment of the majority is the effective judgment. If they are divided equally, and the accused must be given the benefit of doubt the judgment of acquittal is the effective judgment, or if they must order retrial, the judgment of retrial is the effective judgment. If the view of the Magistrate who had not heard the entire evidence is in support of the effective judgment, there is the possibility, or even probability, of his having influenced the other Magistrates of the Bench in coming to the same view as he did and there must be a trial. If, on the other hand, his view is against the effective judgment, it is a case of his having exercised no effective influence on the other Magistrates and there is no reason for not giving effect to the judgment of the Court. In Ram Khelawan's case A, who was absent on one hearing, gave a judgment for acquittal and B and C differed. The effective judgment of the Court (consisting of B and C) was of acquittal and A's judgment also was of acquittal. In Ram Khelawan's case A, who was absent on one hearing, gave a judgment for acquittal and B and C differed. The effective judgment of the Court (consisting of B and C) was of acquittal and A's judgment also was of acquittal. There was thus the fear that he might have influenced B into firming the view that the accused was not guilty and retrial was ordered. In Dasrath Rai's case A, B and C all found the accused guilty; the effective judgment was of conviction and that was also the judgment of A, who was absent on some hearing, and the conviction was set aside and the retrial ordered. In Qabool Singh's case the judgment of acquittal was passed by A and B and A was not present throughout the hearing and retrial was ordered because the effective judgment of B might have been influenced by A. 16. In Ram Sunder De v. Rajab Ali, ILR U Cal 558, one set of magistrates heard some evidence and another set of magistrates beard the rest of the evidence and acquitted the accused; the acquittal was set aside and re-trial was ordered. Girdhari v. E. 2 Lahore 337 E C, is a case in which A and B heard some evidence and B and C heard the rest of the evidence and passed a judgment of conviction which was hold to be illegal and was set aside and retrial was ordered. That case simply followed previous authorities and contains no discussion of the law. Another case in which retrial was ordered is in re Subbramania Iyyar ILR 38 Mad. 304 in which a magistrate who was absent on one hearing attended the next hearing and took part in passing a judgment of conviction. In this case Section 530 of the Code of Criminal Procedure was applied. Rameahwar Dat Singh v. Bharat Singh, 35 Cr. L.J. 417, is a case from Lucknow. One magistrate was not present on all the hearings and yet took part in the ILR 20 Cal. 870 judgment of conviction. The judgment was set aside and retrial was ordered In most of these cases there is no reference to rules which might have been framed by the Government or the District Magistrate u/s 16 of the Code of Criminal Procedure. 17. 870 judgment of conviction. The judgment was set aside and retrial was ordered In most of these cases there is no reference to rules which might have been framed by the Government or the District Magistrate u/s 16 of the Code of Criminal Procedure. 17. Now I come to cases in which no retrial was ordered Hardwar Singh v. Khegu, ILR 20 Cal. 870, is one of the earliest cases. Aand B recorded some evidence and B and C recorded the rest and passed a judgment of conviction. On the principle that "the only persons who can decide a case are those who heard the evidence and the arguments," the whole judgment was set aside and whether retrial should be ordered or not was not considered at all. The rules framed u/s 16 of the Code of Criminal Procedure were held to be ultra vires. In Damri v. Bhawani, 23 Cal. 194 and Gangappa v.E., 63 I.C. 151, the conviction was set aside and the question of retrial was not considered. No retrial was ordered in U.B. Naga Paik v. Saw Naga ,20 Cr. L.J. 336, because there was no case on merits even.) In the case of Surajbali v. Emperor , 1929 Cr. L.J. (Oudh) 310, the judgment of conviction was passed by all the three though one had not heard the entire evidence and the conviction was set aside, but no retrial was ordered because the accused had undergone some imprisonment during the trial.' In Har Narain's case the judgment was passed by A and B, A not having heard the entire evidence. The conviction was upheld. According to my view it should have been set aside, but there was this special feature in that case that the accused himself said that he did not want de novo trial. In Emperor v. Kesri, Cr. L.J. 1947 All 431, the judgment of conviction was passed by A, B and C, two of whom had not heard, the entire case, and this Court acquitted the accused and did not order retrial. 1 respectfully differ from the view taken in that case. 18. In the present case on discarding the judgment of Shri Karan Singh, retrial was the only proper course. The effective judgment of the Court consisting of the other two Magistrates would have been of retrial. 1 respectfully differ from the view taken in that case. 18. In the present case on discarding the judgment of Shri Karan Singh, retrial was the only proper course. The effective judgment of the Court consisting of the other two Magistrates would have been of retrial. Whether that judgment stands on the groud that it was not influenced by Shri Karan Singh, or it is set aside and retrial ordered, the result is the same. The argument that Shri Murari Lal Gupta's judgment of conviction also should be ignored because it might have been influenced by Shri Karan Singh, cannot be accepted. There is a only possibility that it might have been influenced and that without such influence Shri Murari Lal Gupta also might have been in favour of acquittal; there is no certainty and it might not have been influenced at all. 19. I maintain the order of retrial passed by the learned Assistant Sessions Judge and dismiss this application.