Saiyed Ahmed v. Ratan Chakladar — 1978 DIGILAW 408 (CAL)

JUDGMENT This Rule is directed against the judgment of acquittal passed by the learned Sessions Judge, Cooch Behar in Sessions Case No. 35 of 1976. The only point that is raised in this case is that the trial is vitiated and accordingly the order of acquittal is bad in law, in view of the fact that the judgment was passed by the learned Sessions Judge on the basis of the evidence recorded by his predecessors in office. 2. Mr. Jyotish Chandra Bose, Advocate appearing for the petitioner has submitted before me that the judgment and order of acquittal is without jurisdiction in view of the fact that the learned Judge who passed the judgment and order of acquittal did not record the evidence of the witnesses during the trial but acted upon the evidence recorded by his predecessor and then passed the judgment of acquittal. 3. In this connection, Mr. Bose has cited several cases. The first of these cases is reported in 23 Weekly Reporter page 59. In that case the accused was convicted and sentenced in pursuance of a judgment passed by the successor Judge whose predecessor had partly recorded the evidence. It has been held in that case that it is the general principle, that judgment must be delivered by the Judge who has heard the evidence, and the exception is to be found in S. 328, (now S. 326) of the Code of Criminal Procedure that relates to trials by a Magistrate. In that case it was found that the prisoner's consent was taken to the trial proceedings by the successor judge and it was held that nevertheless the trial was bad and illegal and therefore the same was set aside and retrial was ordered. The next case cited is reported in AIR 1947 PC page 67. That decision relates to violation of S. 162 of the Code of Criminal Procedure. The entries in the Police Sub-Inspector's notebook was not made available to the accused as they should have been, for the cross-examination of the witnesses in court and thereby there was a breach of the provisions of S. 162 of the Code of Criminal Procedure. That decision relates to violation of S. 162 of the Code of Criminal Procedure. The entries in the Police Sub-Inspector's notebook was not made available to the accused as they should have been, for the cross-examination of the witnesses in court and thereby there was a breach of the provisions of S. 162 of the Code of Criminal Procedure. It has been held by their Lordships in that case that only the errors of procedure arising out of mere inadvertence and not cases of disregard of or disobedience to mandatory provisions of the Code could be cured under S. 537 of the Code of Criminal Procedure. When a trial is conducted in a manner different from that prescribed by the Code the trial is bad and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under S. 537 and nonetheless so because the irregularity involves as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. It was found that in that case that the irregularity complained of was held to be cured by S. 537 of the Code of Criminal Procedure and accordingly the trial was held to be valid notwithstanding the breach of S. 162 of the Code of Criminal Procedure. The third case cited is reported in AIR 1948 PC page 63. That was a prosecution under Administration of Criminal Justice Ordinance (1926) Hyderabad under Ss. 226, 393, 236 and 413 of that Ordinance. The trial was with the aid of assessors and the trial started in absence of the Public Prosecutor contrary to the provisions of S. 226 of that ordinance. The Judge examined the prosecution witnesses and summed up the evidence. The trial was held to be vitiated for breach of S. 226 and accordingly the conviction was quashed and the accused were acquitted. The next case cited is reported in AIR 1948 Allahabad page 278 where the principles laid down in AIR 1927 PC page 44 and AIR 1948 PC page 63 have been explained and affirmed. In S. 537 of the Cr. P. Code there is no distinction between illegality and irregularity. Both are curable under that section. The next case cited is reported in AIR 1948 Allahabad page 278 where the principles laid down in AIR 1927 PC page 44 and AIR 1948 PC page 63 have been explained and affirmed. In S. 537 of the Cr. P. Code there is no distinction between illegality and irregularity. Both are curable under that section. The sole criterion is whether by the defect prejudice was caused to the accused. The revisional application was dismissed in that case. 4. The case reported in AIR 1960 SC 661 has been referred to by the learned advocate for the opposite party who relied on the findings in that case in paragraph 8, where their Lordships were pleased to re-affirm the principles laid down in AIR 1947 PC 67 that "if the criminal trial is conducted substantially in the manner prescribed by the Code but some irregularity occurs in the course of such conduct, the irregularity can be cured under. S. 537 and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code". 5. Another case referred to by the learned Advocate for the opposite party is reported in AIR 1956 SC 116 . It was held in that case that the Code is a Code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice". That, broadly speaking, is the basic principles on which the Code is based. That, broadly speaking, is the basic principles on which the Code is based. Under the Code, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. 6. Last case cited is reported in AIR 1973 SC page 799. That case I am afraid has no bearing on the facts of the present case. That was a case for quashing the entire proceeding. When the trial had proceeded to a great length and only the examination of two prosecution witnesses and one Court witness remained to be cone the High Court quashed the charge and the entire proceedings on the grounds that the complainant suppressed material facts and the evidence on record did not establish the alleged offence. Their Lordships did not interfere as the ground made out was not sufficient for quashing the proceeding. It will be seen that all the cases relate to conviction of the accused and not to case of acquittal as the present case is. The only case that has been cited which may have some bearing is the case reported in AIR 1962 SC page 690. That was a trial before the Special Court under the Criminal Law Amendment Act, 1952 as it stood before its amendment, S. 350 of the Criminal Procedure Code was not available when one Special Judge succeeded another. The successor Special Judge had no authority under the law to proceed with the trial of the case from the stage at which his predecessor left it. Where the successor Judge convicted the accused under the S. 5(2) of the Prevention of Corruption Act, upon the evidence recorded by his predecessor without recalling the witnesses, the conviction could not be supported, as he had not himself heard the evidence. Accordingly it was held that the proceedings before him were incompetent. This was not a case of irregularity but want of competency. Apart from S. 350 which was not applicable to the case, the Code did not conceive of such a trial. Accordingly it was held that the proceedings before him were incompetent. This was not a case of irregularity but want of competency. Apart from S. 350 which was not applicable to the case, the Code did not conceive of such a trial. The trial offended the cardinal principle of law, namely, that it is a right of an accused person that his case should be decided by a Judge who has heard the whole of it, the acceptance of which by the Code was clearly manifest from the fact that the Code embodied an exception to that principle in S. 350. Therefore S. 537 of the Code did not apply to such a trial. It could not be called in aid to make what was incompetent. On that ground the conviction was set aside and the case was remanded for retrial. 7. The case that is to the point is reported in 52 Criminal Law Journal page 722. It has been held in. that case that S. 281 of the Hyderabad Cr. P. C. corresponding to S. 350 of the Indian Criminal Procedure Code provides a carefully limited exception to the salutory principle of natural justice that "he alone may decide who has heard the evidence", and given discretion to a magistrate, under certain circumstances to act upon the evidence recorded by his predecessor and decide the case. The section does not give this discretion to a Sessions Judge. There is, however, no express prohibition in the statute and if a Sessions Judge acts upon the evidence recorded by his predecessor it only violates the above mentioned salutory principle of natural justice. There is no reason why the Sessions Judge also should not be given the same power as a Magistrate subject to the principle that the appellate or revisional court should have the power to quash the proceedings if it is of opinion that by the procedure of the Sessions Judge there has been a palpable miscarriage of justice. Acting upon the evidence recorded by the predecessor in office is not a matter of jurisdiction but only a matter of irregularity which could be cured by S. 537. Where therefore, there has been an acquittal based on the evidence recorded by a prior Sessions Judge, the judgment is not necessarily liable to be set aside as it does not affect the jurisdiction of the Sessions Judge passing the judgment. Where therefore, there has been an acquittal based on the evidence recorded by a prior Sessions Judge, the judgment is not necessarily liable to be set aside as it does not affect the jurisdiction of the Sessions Judge passing the judgment. 8. It has not been argued by Mr. Bose, appearing for the petitioner that there has been a miscarriage of justice on the ground that the Sessions Judge acted upon the evidence recorded by his predecessor and passed the judgment of acquittal in the said case. In fact, the prosecution did not object to the learned Sessions Judge passing the judgment upon the evidence recorded by his predecessor. What Mr. Bose has argued is that it relates to the competency of the Court and whether it is a judgment of acquittal or of conviction, if it is a question of jurisdiction, then it does not matter what the result of the case is. But the Full Bench decision quoted above (1952 CrLJ page 722) seemed to hold that it is a question not of jurisdiction but a question relating to prejudice. It has to be shown that prejudice has been caused to the prosecution (accused ?) and that has resulted in miscarriage of justice. The learned Advocate for the opposite party has referred me to S. 35 of the Criminal Procedure Code wherein it is provided that "the powers and duties of a Judge or Magistrate may be exercised or performed by his successor-in-office". The duty of a Judge to pass a judgment which his predecessor could have Gone may be exercised by the successor according to S. 35 Cr. P. C. In view of the fact that no prejudice has been shown to have been caused to the prosecution in adopting the procedure, that the learned judge did in passing judgment without recording the evidence recorded by his successors and relying upon the Full Bench decision quoted above I hold that the judgment and order of acquittal is within the competency of the learned judge, who passed the same. Accordingly I discharge the Rule. Rule discharged.