Mushtaq Ali v. State of U. P. — 1964 DIGILAW 142 (ALL)

JUDGMENT C.B. Capoor, J. - This reference has been made by the learned Additional District Magistrate, Agra, recommending that the order of the Bench Magistrate, Firozabad, convicting the applicants of an offence under Section 13 of the Gambling Act and sentencing each of them to a fine of Rs. 25/- and in default to undergo simple imprisonment for 15 days be set aside, on the ground that all the members who constituted the Bench were not present throughout the proceedings. The reference was admitted to a regular hearing by our brother Bishambhar Dayal, J. who directed the papers to be laid before the Hon'ble the Chief Justice for constituting a larger Bench for consideration as to whether the previous rulings of this Court like Dasrath Rai v. Emp A.I.R. 1934 All. 144 : 1934 A.L.J. 376 on the interpretation of Section 350-A of Cr.P.C. were still good law in view of the amendment of Section 350 of Cr.P.C. by the Criminal Law Amendment Act 1955 and it is in these circumstances that the Reference has been listed up before a Division Bench for hearing. 2. It is not disputed that all the members of the Bench of Magistrate who decided the case were not present throughout the proceedings. Section 350-A of Cr.P. C. reads as below:- "No order or judgment of a Bench of Magistrates shall be invalid by reason only 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 Section 15 and 16, and the Magistrate constituting the same have been present on the Bench throughout the proceedings." The aforesaid section was introduced in the Code by the Criminal Procedure Amendment Act 1923 (Act No. XVIII of 1923). Prior to the incorporation of the aforesaid section it was uniformly held that, "Where a judgment is delivered by some members of the Bench Magistrate who formed the necessary quorum and had been present throughout the proceedings the judgment would be perfectly valid vide Khuda Bux v. Emp. Prior to the incorporation of the aforesaid section it was uniformly held that, "Where a judgment is delivered by some members of the Bench Magistrate who formed the necessary quorum and had been present throughout the proceedings the judgment would be perfectly valid vide Khuda Bux v. Emp. 18 Cr.L.J. 749 = 15 A.L.J. 463, Vankatarama Aiyar v. Saminatha Aiyar I.L.R. 38 (Mad.) 797 and Brij Bhukhan v. Ram Kirat A.I.R. 1923 (Oudh) 163 Judicial opinion was, however, divergent on the question if a judgment by a Bench of Magistrate some of whom were not present when the evidence was recorded could be considered to be valid. According to one view such a judgment was a nullity vide Damri Thakur v. Bhowani Sahoo I.L.R. 23(Cal.)194, Girdhari v. Emp. A.I.R. 1921 (Lah.) 135 and Re Subramania Ayyar I.L.R. 38 Mad. 304. According to the other view this was a mere irregularity and the judgment would not be valid unless the accused was prejudiced by the course adopted vide Emp. v. Mathura I.L.R. 41 s(All.) 116 : 16 A.L.J. 884. It was in the aforesaid state of the rulings that Section 350-A was put on the statute book. The section is not happily worded inasmuch as it does not provide as to when would the order of the Bench Magistrates be valid. What it provides is that such an order would not be invalid if certain conditions, namely, that a Bench of Magistrates is duly constituted and the members of the Bench have been present throughout the proceedings are fulfilled. The section provides that:- "No order or judgment of a Bench of Magistrates shall not 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 an order or judgment is passed is duly constituted under Sections 15 and 16, and the Magistrates constituting the same have been present on the Bench throughout the proceedings." An analysis of the aforesaid section will indicate that it comes into play when there has been a change in the constitution of the Bench. The section has come up for consideration in several cases. In the case of Dasrath Rai and others v. Emp. A.I.R. 1934 All. The section has come up for consideration in several cases. In the case of Dasrath Rai and others v. Emp. A.I.R. 1934 All. 144 : 1934 A.L.J. 376, the facts were that three Honorary Magistrates (any two of whom formed the quorum) constituted the Bench which had power to try a case. On most of the hearings all the three Honorary Magistrates were present, but on one of the hearing when some witnesses were examined one of the Magistrate happened to be absent. He re-joined on the next date and then continued to be present all along and ultimately took part in delivering and signing the judgment. All of them unanimously came to the conclusion that the accused were guilty and convicted them. 3. It was held that as one of the Honorary Magistrates had not heard the whole evidence and had not been throughout the proceedings and took part in the deliberation and joined the others in arriving at the final decision, there was every likelihood of his influencing his colleagues by virtue of his absence on some of the material dates he became incompetent to form a true opinion on the merits of the case and if he joined in the deliberations, there was likelihood of a failure of justice. The conviction was, therefore, illegal and should be set aside. 4. In the case of Harnarain v. Emp. A.I.R. 1943 All. 20 : 1942 A.L.J. 609, it was held that:- "The section referred only to a case where the whole constitution of a Bench had been changed during the time when the trial was pending. It made a provision that its terms would apply if the members of the particular Bench have been absent throughout and that it was not intended to affect other Sections of the Code, as for instance 350." 5. In the case of Emp. v. Kesri A.I.R. 1947 All. It made a provision that its terms would apply if the members of the particular Bench have been absent throughout and that it was not intended to affect other Sections of the Code, as for instance 350." 5. In the case of Emp. v. Kesri A.I.R. 1947 All. 123 : 1946 A.L.J. 495, it was held that: "The only possible case to which Section 350-A can reasonably be applied was the one in which there had been a substractions from the strength of the Bench during the course of the proceedings and it could not apply to a case in which there can be either a substitution or an addition in or to the composition of the Bench since in that case it would never happen that the magistrates constituting the Bench at the time of the delivery of the order or judgment had been present throughout. It was further observed that:- "That condition which after all was the most important condition of the whole section could only be complied with when there had been a subtractions from the strength of the Bench." In case of Qabul v. Chajju, A.I.R. 1948 All. 411 Agarwala, J. if I may say so with respect, in a very lucid judgment traced the history of the law on the point and held that:- "The trial of a case by a Bench of Magistrates will not be valid if one of the Magistrates who signed the order was not present at all the hearings." 6. In the case of Kali Charan v. State A.I.R. 1955 All. 711 : 1954 A.L.J. 652 it was held that: "There is no reason why Section 350 should not apply when the personnel of a Bench of the Magistrates is changed during the trial." It will have been noticed that the aforesaid decision was distinguishable inasmuch as a change had taken place in the constitution of the Bench. That decision would, however, not be applicable to a case in which there has not been any change in the constitution of the Bench rather one or some of the Magistrate absented themselves on some of the dates fixed for hearing in the case of Nago v. Shanker A.I.R. 1932 Nag. That decision would, however, not be applicable to a case in which there has not been any change in the constitution of the Bench rather one or some of the Magistrate absented themselves on some of the dates fixed for hearing in the case of Nago v. Shanker A.I.R. 1932 Nag. 95 Staples A.C.J. held that:- Where one of the three Magistrates remains absent at two important hearings, his assisting in delivering the judgment, and signing the judgment constitute an illegality vitiating the trial." In the case of Banwari v. Emp. A.I.R. 1926 Lah. 304 it was held that :- "A trial by a bench of Magistrate is bad if the quorum of Magistrate constituting the Bench is not present throughout the whole of the proceedings." It would thus appear that the generally accepted view is that an order of a Bench of Magistrates will be invalid if the members of the Bench duly constituted have not been present at all hearings of the case. Section 350 of Cr.P.C. was amended by the Criminal Law Amendment Act 1955. Section 350 of Cr.P.C. was amended by the Criminal Law Amendment Act 1955. Prior to its amendment sub-Section (1) of Section 350 read as below:- "Whenever any Magistrate after having heard and recorded the whole or any part of the evidence in any enquiry or trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercise such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor or partly recorded by himself or he may re-summon the witnesses and recommence the enquiry or trial." Proviso(a): "in any trial the accused may, when the second Magistrate commences his proceeding, demand that the witnesses or any of them be resummoned and re-heard." Proviso(b): "the High Court, or, in cases tried by Magistrates subordinate to the District Magistrate, the District Magistrate may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the Magistrate before whom the conviction was held, if such Court or District Magistrate is of opinion that the accused has been materially prejudiced thereby, and may order a new enquiry or trial." The words "or he may resummon the witness and recommence the enquiry or trial" which occurred after the words "partly recorded by himself" in sub-Section(1) of Section 350 were omitted and the following proviso was substituted for the former provisos (a) and (b):- "Provided that if the succeeding Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may resummon any such witness and after such further examination, cross examination and re-examination, if any, as he may permit, the witness shall be discharged." It would thus appear that the material change brought about by the amendment was that while previously an accused could demand a trial denovo if the Presiding Officer who had partly recorded the evidence ceased to have jurisdiction discretion has now been vested the successor magistrate to act on the evidence so recorded by his predecessor unless he considered that further examination of any of the witnesses whose evidence had already been recorded by his predecessor was necessary in the interest of justice. 7. 7. It will have been noticed that the aforesaid Section 350 makes provision for the contingency when a Magistrate after having heard and recorded the whole or part of the evidence in an enquiry or trial ceased to have jurisdiction therein. The section does not come into play and is not attracted when one of the Magistrates constituting the Bench is absent during the trial of the case but takes part in passing the order or judgment and signs the order or judgment. Thus the provisions of that section cannot be availed of for validating an order made by a Bench of Magistrates which order is vitiated under Section 350-A of Cr.P.C. 8. The principle of natural justice that a case should be decided by an officer who had recorded the evidence is well-established. Section 350 of Cr.P.C. is an exception to that principle and it should be strictly construed. Its scope should not be widened on mere analogy. The principle of natural justice, referred to above, is so jealously guarded that section 350, referred to above, was not held to be applicable to trials by Special Judges under Section 5(2) of the Prevention of Corruption Act and the law had to be amended in order to make it applicable to such trials vide Piare Lal v. State of Punjab, A.I.R. 1962 S.C. 690. 9. If the intention of the Legislature had been that the order made by a Bench of Magistrates will be valid even though some of the members of the Bench did not take part in the proceedings throughout, nothing would have been easier than to have widened the scope of Section 350 of Cr.P.C. so as to cover a case of absence of one of the members of the Bench at some of the hearings of the case and to make it applicable notwithstanding the provisions of Section 350-A of the Code. 10. We are, therefore, of the opinion that if any one of the members of the Bench of Magistrate who has assisted in the making of the order or judgment was absent at any hearing of the case the order or judgment will be invalid and the invalidity will not be curable by virtue of the provisions of Section 350 of the Code. 11. 11. The Reference is accordingly accepted and the order of the learned Magistrate convicting the applicants of the offence under Section 13 of the Gambling Act and sentencing each of them to a fine of Rs. 25/- is set aside. The fine, if paid, shall be refunded. The case is sent back to the District Magistrate, Agra, to try it himself or to transfer it to some other Magistrate competent to try it.