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PETITIONER: KRISHAN LAL DHAWAN AND ANOTHER

       Vs.

RESPONDENT: DELHI ADMINISTRATION

DATE OF JUDGMENT: 15/02/1962

BENCH:

ACT: Criminal Trial-Trial by Special Judge- Another special Judge conducts  further proceedings--Conviction-Validity  Code  of Criminal  Procedure, 1898 (Act 5 of 1898),  s.  350-Criminal Law Amendment Act, 1952 (46 of 1952). s. 8, sub-s. 3.

HEADNOTE: The  appellants were charged under ss. 120B and  420  Indian Penal  Code  and  s. 5 (1) (d) read with s. 5  (2)  of  the. prevention  of Corruption Act. The trial of  the  appellants was   commenced  before  a  Special  judge  who  heard   the prosecution evidence.  Thereafter the trial was taken up  by another special judge who examined the defence witnesses and finally convicted the ’appellants.  The appellants  appealed to the ’High Court and the High Court upheld the  conviction and  sentence.   The appellants thereupon  appealed  to  the Supreme Court by special leave. The  sole  question which was raised by the  appellants  was that  in  view of the fact the trial  commenced  before  one Special  judge  and  another  Special  judge  took  up   the proceedings  are incompetent.  The respondent relying on  s. 8, sub-s . (3), of the Criminal Law Amendment 210 Act,  1952,  contended  that trial  was  competent  and  the conviction and sentence were valid in law. Held, that s. 350 of the Code of -Criminal Procedure is  not applicable  when one special judge is succeeded by  another. Neither  does  s. 3 (a) of the Criminal Law  Amendment  Act, 1956,  make  the  applicability of s. 350  of  the  Code  of Criminal   Procedure   to  a  trial  by  a   special   judge retrospective. Payare  lal  v.  State  of Punjab, 1962) 3  S.  C.  R.  328, followed.

JUDGMENT: CRIMINAL  APPELTATE JURISDICTION : Criminal Appeal Nos.  196 and 197 of 60. Appeal  by special leave- from the judgment and order  dated May 1958, of the Punjab High Court (Circuit Bench) at  Delhi in, Criminal Appeals Nos. 3-D and I -T) of 1958. A.S.R. Chari, M. K. Ramamurthi, R. K. Garg, D. P. Singh  and S. C. Agarwal, for the appellant (in Cr.  A. No. 196/60). N.   S. Bindra.  I. Ill.  Lal and A. G. Ratnaparkhi for  the appellant (in Cr.  A. No. 1 97/60). H.   R.  Khanna,  R.  H. Dhebar and P.  D.  Menon,  for  the respondents. 1962.  February 15.  The Judgment of the Court was delivered

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by KAPUR,  J.-These  two  appeals  are  directed  against   the judgment  and order of the Punjab High Court confirming  the conviction of the appellants under ss.120 B and 420;  Indian Penal  Code,  and  s.5(1  ) (d) read with  s.  5(2)  of  the Prevention  of Corruption Act, 1917; And sentencing each  of them  to  an  aggregate sentence  of  six  months’  rigorous imprisonment. It is unnecessary to set out the facts in detail but to  put them  .  briefly.   The appellant  Albert  Mossses  was  the Principal  incharge  of the Rehabilitation  Centre,  Malviya Nagar and Kalkaji  211 under the Ministry of Rehabilitation.  The appellant, K.  L. Dhawan,  was a partner in the firm named M/s.  Dhawan &  Co. and  they supplied a surface plate for a sum of Rs.  1,950/- to the Works Centre of which the appellant Albert Moses  was the Principal. The  trial of the appellants and R. P. Dhawan, who has  been acquitted, commenced in the Court of Mr. Jawala Das, Special Judge,  Delhi,  and he heard the case from the date  of  the institution  of the proceedings on May, 21, 1956 to  October 26,  1956.   He  heard the prosecution  evidence  which  was closed ’on October 26, 1956.  The case was then taken up  by Mr.  P. D. Sharma, Special Judge, Delhi, from  December  20, 1956.   He examined defence witnesses and finally  convicted the  appellants  of  the  offences  already  mentioned   and acquitted R. P. Dhawan. Against  the conviction and sentence an appeal was taken  to the  High Court but the conviction was upheld and  also  the sentenees  and  against that judgment and  order  these  two appeals  by special leave have been brought by the two  con- victed persons.  The sole question which has been raised  in this  Court is that in view of the fact the trial  commenced before  one Special Judge and another Special Judge took  up the proceedings after December 20, 1956, the proceedings are not  competent  and,  therefore,  the  conviction  and   the sentence  cannot be upheld.  Counsel relies upon a  judgment of  this Court in Payara Lal v. State of Punjab(1) in  which it was held that "s. 350 is not applecable when one  Special Judge  is succeeded by another . In that view of the  matter Mr. P.D. Sharma was not Competent to proceed with the  trial from the stage at which it was left by Mr. Jawala Das. (1)  [1962] 3 S.C.R. 328. 212 Counsel  for the respondent relies on sub.s.(3) of S.  8  of the Criminal Law Amendment Act (Act 46 of 1952) which  makes the provisions of the Code of Criminal Procedure, in so  far as  they are not inconsistent with that Act,  applicable  to proceedings before a Special Judge and also provides that  a Special Judge shall be deemed to be a Court of Session  when trying  a case under the Criminal Law Amendment Act  (46  of 1952).  But this question was considered in the case decided by  this  Court in Pyaralal’s case(1) in which it  was  held that sub-s.(3) of s. 8 of Act 46 of 1952 did not contemplate that  s.  350  of  the  -.Criminal  Procedure  Code  becomes applicable to proceedings before a Special Judge. It was also held in the case that the amendment made in  the Criminal Law Amendment Act by Act 2 of 1956 by which s. 3(a) was added to it making the provisions of s.350. of the  Code applicable to a trial by Special Judges has no retrospective effect.   In this view of the matter, the conviction of  the appellants  must therefore be set aside.  The case  will  be disposed of in accordance with law. Appeal allowed.

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(1)  [1962] 3 S.C.R. 328.  213