Judgment Ram Nandan Prasad, J. Government Appeal No. 39 of 1978 and Criminal Revision No. 1380 of 1978 have been heard together and are being disposed of by this common judgment, as both of them are directed against the same order of acquittal-the former having been filed by the State of Bihar and the latter by the informant. 2. The prosecution case is that on the following day of the Holi Basioura Mela was being held at Sabbalpur on 2nd March, 1972. Informant Jairam Singh and other prosecution witnesses had also gone to that Mela. While Jairam Singh was standing at about 8 A.M. accused-respondent Sachida Singh came from behind and poured acid on his head which he had brought in an earthen pot. Jairam Singh sustained burning sensation as a result thereof and he fell down at that very place. P. W. 2 Krishna Prasad, who also happened to be by the side of the informant Jairam Singh, also sustained some injuries by the same Act, of the accused. Both these injured persons were taken to a private doctor and from there to the police station where a Sanha was recorded on the statement of informant Jairam Singh at about 9 A.M. The police referred the informant to Patna City Hospital for medical examination and report and, on receipt of the report, the police registered a case. After completing investigation, the police submitted chargesheet against respondent Sachchida Singh, who was In due course tried on the charge under section 326 of the Indian Penal Code and was ultimately acquitted by Sri Sudarshan Upadhyay Sub-divisional Judicial Magistrate, Patna City, by his judgment dated 9th August, 1978. 3. The defence of the accused was that he was implicated falsely on account of enmity. 4. The submission of the learned counsel appearing for the appellant (State of Bihar) is that the occurrence has been fully proved by P.Ws. 2, 3, 4, 5 and 8 who have figured as eye-witnesses to the occurrence besides the informant (P.W. 7) and the learned Magistrate was wholly unjustified in acquitting the accused on the ground that there is no evidence on the record to prove that it is accused Sachchida Singh who had poured the acid on the informant. 2, 3, 4, 5 and 8 who have figured as eye-witnesses to the occurrence besides the informant (P.W. 7) and the learned Magistrate was wholly unjustified in acquitting the accused on the ground that there is no evidence on the record to prove that it is accused Sachchida Singh who had poured the acid on the informant. Prima facie, there may be some force in the submission of the learned counsel, but it does not appear necessary to go into this question in view of the patent illegality committed by the trial court in this case. 5. It is undisputed position that the accused was being tried on the charge under section 326 of the Penal Code which is triable by a Magistrate of the 1st Class. Section 26(a)(iii) of the Code of Criminal Procedure clearly lays down that any offence under the Indian Penal Code has to be tried by the court by which such offence is shown to be triable in the First Schedule. Now, according to the First Schedule, the, offence punishable under section 326 of the Penal Code is triable by a Magistrate of the first class. That being the position, a Magistrate of the second class could not have any jurisdiction to try this case either wholly or partly. It appears from paragraph No. 15 of the judgment of the trial court that the depositions of P.W. 7 Jairam Singh and P.W. 8 .Ram Dayal Singh were recorded by Sri G.P. Srivastava, Judicial Magistrate, second class, who had apparently no jurisdiction to record the depositions in this case. 6. It appears that a submission was made on behalf or the accused before the trial court that the depositions of those two witnesses could not be used in this case as Sri Srivastava had no jurisdiction to try this offence, but the learned trial court ignored this submission, as, according to it, this irregularity committed by Sri Srivastava in recording the said depositions would not vitiate the trial. In my, opinion, the learned trial court was evidently wrong in saying so, as according to section 530 of the Code of Criminal Procedure, 1898, which would govern this trial, this will be an irregularity which would vitiate the proceeding and make it void altogether. In my, opinion, the learned trial court was evidently wrong in saying so, as according to section 530 of the Code of Criminal Procedure, 1898, which would govern this trial, this will be an irregularity which would vitiate the proceeding and make it void altogether. Section 530 enumerates the irregularities which make the proceeding void and at serial No. (p) there is a mention about the trial of an offender. So, if an offender is tried by a Magistrate who had no jurisdiction to try the offence in question, the irregularity would vitiate the proceeding. The logical implication thereof would be that any part played by such a Magistrate is the trial would be void and without jurisdiction and consequently non est. If Such a Magistrate holds the trial even partly, that part of the trial has to be ignored as being void and without any jurisdiction. So, if is evident that the depositions of P.Ws. 7 and 8 could not be taken into consideration by the trial court and its judgment is vitiated by the fact that it placed reliance on the depositions of those two witnesses. 7. The aforesaid view finds support from a Division Bench decision of Calcutta High Court in Budhu Tatua Va. Emperor in which the following observations have been made:- "Mr. Mukherjee, who had second class powers and to whom the cast was transferred, had no jurisdiction to try the case against the accused under S. 471. The evidence recorded by him could not be legally considered and who had jurisdiction in the matter. The result was that part of the evidence was recorded by a Magistrate who had no jurisdiction, and part of the evidence by a Magistrate who had jurisdiction. In this view the petitioner has made good the ground on which the rule was issued." 8. Similar view was taken by a Division Bench of this Court also In the case of Sridhar Jha Vs. Emperor, In this case it was observed that where a Magistrate of the second class conduct a trial for an offence which was triable by a Magistrate of the first class, the said trial must be held to be without jurisdiction. 9. So, the position is that the depositions of P.Ws. Emperor, In this case it was observed that where a Magistrate of the second class conduct a trial for an offence which was triable by a Magistrate of the first class, the said trial must be held to be without jurisdiction. 9. So, the position is that the depositions of P.Ws. 7 and 8 which were recorded by a Magistrate who had no• jurisdiction to the offence for which the accused was being tried and as such they have to be treated al non est and to be excluded from consideration. If these two depositions are excluded from consideration it will not be possible to convict the accused on the residue evidence. This position was not disputed by the learned counsel appearing for the appellant. But, his submission was that this Court should send back the case to the trial court after setting aside the impugned judgment for recording the depositions of P.Ws. 7 and 8 afresh and thereafter to proceed with the trial according to law. It was also pointed out that a similar process was adopted in the aforesaid Calcutta case. No doubt, this procedure would, ordinarily, be quite just and proper but, as submitted by the learned counsel for the respondent, it is likely to cause grave injustice to the respondent in the peculiar circumstances of this case. It was pointed out that the occurrence took place on 2nd March, 1972, i.e., about 13 years back and the judgment of acquittal was given more than six years back. In such circumstances I agree with the learned counsel for the respondent that it would be very harsh for the respondent if he is again asked to face trial on the same charge. It is obvious that the accused must have undergone mental, physical and financial strain during all these years. A retrial after a lapse of so many years does not seem to be fair for the accused and it would net further the cause of justice. 10. For the reasons given above, I do not feel inclined to interfere with the judgment of acquittal recorded In favour of the accused respondent even though the trial has been vitiated and the judgment is not in accordance with law. The appeal as well as the revision are, accordingly, dismissed. Appeal and revision dismissed.