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PETITIONER: MAGGA AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF RAJASTHAN

DATE OF JUDGMENT: 16/02/1953

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN

CITATION:  1953 AIR  174            1953 SCR  973  CITATOR INFO :  R          1956 SC   4  (4)  R          1976 SC2386  (7)

ACT: Criminal  Procedure  Code (V of 1898), ss.  284,  285,  539- Assessors-Trial with three assessors-Absence of one assessor during   trial-Substitution   of  new   person-Legality   of trial-Re-appearance of absent assessor-Continuing trial with four assessors Validity of trial.

HEADNOTE: Section  285 of the Criminal Procedure Code permits a  trial commenced  with the aid of three assessors to  be  continued and completed with the aid of less than three if during  the course of the trial any assessor is prevented by  sufficient cause  from attending.  It does not, however, authorise  the substitution  of  an  assessor  for an  absent  one  nor  an addition to the number of assessors during the course of the trial. A,  B and C were summoned to sit as assessors for  a  murder trial  and  as C did not appear, D who was in  the  list  of assessors and who was present in court though not  summoned, was  asked  to sit as an assessor, and the  trial  commenced with three assessors A:, B and D. A absented himself  during the  course  of, the trial and the judge asked E to  sit  in place  of A and proceeded with the trial for some days  with B, D and E. Later on A appeared and the trial continued till the end with the four assessors A, B, D and E: Held,  (i) that the mere fact that D who had not  been  sum- moned  was  allowed  to sit as an assessor  when  the  trial commenced  did  not  vitiate the trial as  it,  was  a  mere irregularity and did not cause any failure of justice; King  Emperor  v. Ramsidh Rai (39 Cr.  L.J.  726)  approved. Balak Singh v. Emperor (A.I.R. 1918 Pat. 420) explained. (ii)though  sub-section (1) of s. 285 imposes a duty on  the judge to find out whether there was sufficient cause for the absence  of  an assessor and to consider whether it  is  not possible  to enforce his attendance, it should  be  presumed that  he has done so when he proceeds with the trial in  his absence and a mere omission to record reasons for proceeding with  the  trial without the absent assessor  would  not  by itself vitiate the trial ;

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(iii)  a  sessions judge, however, has no  jurisdiction  to substitute  another  person  for any  assessor  who  absents himself during the trial or to reinstate the absent assessor when be reappears and continue the trial with four assessors when the trial commenced with three assessors, and the trial in question was there fore illegal. 126 974 King  Emperor v. Tirumal Reddi (I.L.R. 24 Mad.  523  distin- guished.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 103  of 1952.   Appeal under article 134(l) (c) of the  Constitution of India from the Judgment and Order dated the 27th October, 1952,  of  the  High Court of Judicature for  the  State  of Rajasthan  at  Jodhpur (Wanchoo C.J. and Bapna J.)  in  D.B. Criminal Murder Reference No. 2 of 1952, arising out of  the Judgment and Order dated the 1st July, 1952, of the Court of the Sessions Judge, Pali, in Criminal Original Case No. 2 of 1951. H. J. Umrigar for the appellants. Porus A. Mehta for the respondent. 1953.  February 16.  The Judgment of the Court was delivered by MAHAJAN    J.--This is an appeal under article 134(l) (c) of the Constitution of India, by Magga and Bhagga,who     have been convicted under section 302, Indian Penal Code, for the triple murders of Ganesh, Gheesa and Hardas. The  case  relates to an incident which took place  -on  the night between the 3rd and 4th April, 1951 Gheesa and Ganesh, deceased, Ratna, Govind, another Ganesh who is a witness  in the  case,  and Hardas had gone to " Imaratia "  a  well  in village  Gadwara on that night to keep watch over the  crops there.  Gheesa slept in one shed near the well, while Hardas slept in another shed some distance away, and Ratna slept in a  third  shed near the entrance  gate.   Ganesh,  deceased, Ganesh  (P.  W.), and Govind slept on  the  threshing  floor further away from the well.  Some time after midnight  Ratna woke up on hearing the cries of Gheesa.  It is alleged  that he  then saw the two accused beating Gheesa,  accused  Magga having  in  his  hand a farsi and accused  Bhagga  having  a katari  and  an  axe.  Hardas, who woke up  on  hearing  the cries,  rushed  to the aid of Gheesa and thereupon  the  two accused,  Magga and Bhagga, fell upon him and  attacked  him with farsi and axe.  Ratna 975 ran  away and hid himself near the well.  On an alarm  being raised,  one Krishna who was working on a nearby  well  came and  witnessed  the attack on Hardas.   The  accused,  after finishing  Gheesa  and Hardas went to  the  threshing  floor where  Ganesh,  deceased, was sleeping.  There  Magga  asked Bhagga to hit Ganesh with the axe and Bhagga immediately hit Ganesh with the axe and he fell down.  Thereafter Magga  hit Ganesh  two  or three times with the farsi on the  legs  and Bhagga  cut  the  neck of Ganesh with  the  katari.   Govind (P.W.)  entreated on behalf of Ganesh but he was  threatened and was told, that if he did not keep quiet he would also be killed.   Without  injuring Govind and  Ganesh  (P.Ws.)  the accused then left the place. Information  of the incident was carried to the  village  by Ratna  and  a report of it was made to the police  at  11-30 a.m. on 4th April, 1951.  In the report it was stated that "

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Bhagga and Magga are standing at their house with swords and are  saying  that  they would kill  more  persons.   Village people  are surrounding them outside the house ".  The  sub- inspector  of police, when he arrived at the village,  found the  house of the accused surrounded by the village  people. The door of the house was closed from inside and the accused were standing on the chabutra inside.  Magga had a farsi  in his  hand  and  Bhagga had an unsheathed  sword.   The  sub- inspector  got  the door opened, arrested the  accused,  and took  possession  of  the  farsi and  the  sword.   He  also recovered the axe and a katari which were bloodstained.  The clothes  of the accused were also taken possession of  after the arrest and they appeared to have bloodstains on them. The  accused  pleaded  not  guilty.   They  admitted   their partnership  in  cultivation at " Imaratia " well  with  the deceased but denied that any quarrel took place between them and the other partners about the cutting of the crop.   They also  denied  that  they had gone to  the  well  armed  with various  weapons  and had committed the  murder  of  Gheesa, Hardas and Ganesh. The  sessions judge on the evidence led by  the  prosecution felt satisfied that the prosecution case was 976 proved  beyond all reasonable doubt.  It was held  that  the murder  was  brutal  and advantage had  been  taken  of  the persons  who were sleeping to kill them.  In the result  the appellants  were convicted under section 302,  Indian  Penal Code, and sentenced to death.  The sentence of death  passed on  them  by the sessions judge was confirmed  by  the  High Court  after  examining the evidence afresh.   In  the  High Court  a  contention  was raised that the  whole  trial  was vitiated inasmuch as it had not been conducted in accordance with  procedure  prescribed  by law.   This  contention  was negatived on the ground that the irregularities committed in the course of the trial were such as were cured by the  pro- visions  of  section 537, Criminal Procedure Code.   As  the objection  raised  concerned the validity of the  trial  the case was certified as a fit one for appeal to this Court. The  facts which concern the validity of the trial,  shortly stated,  are  these: The trial began on  22nd  March,  1952. Three  assessors had been summoned for that date.  Of  these two  were present while the third did not  come.   Thereupon one  person who was present in the court premises and  whose name  was  in  the list of assessors but who  had  not  been summoned  in the manner prescribed by the Code  of  Criminal Procedure  was chosen as an assessor.  The trial then  began with   the  three  assessors  so  chosen,   viz.,   Jethmal, Balkrishna and Asharam.  On the 6th June, 1952, Jethmal, one of the assessors absented himself and for some reason, which is not clear from the record, one Chimniram was asked to sit in  place of Jethmal as an assessor with the result that  on the  6th  June,  1952, there  were  three  assessors,  viz., Balkrishna  and  Asharam,  who had  been  sitting  from  the beginning  -of the trial, and Chimniram who  was  introduced for  the  first  time  that day.   On  the  23rd  June  also Chimniram, Balkrishna and Asharam sat as assessors.  On 27th June, however, Jethmal reappeared and was allowed to sit and since  that  date  four  assessors  sat  throughout,   viz., Jethmal, Chimniram, Balkrishna and Asharam.  Eventually  all these four assessors gave their opinion on the first 977 July,  1952,  when  the trial came to an end.   It  was  con tended  that the trial was bad as it took place in  defiance of  the  provisions of sections 284 and 285 of the  Code  of Criminal Procedure and that such an illegality could not  be

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cured by the provisions of section 537 of the Code. In  order to judge of the validity of this objection  it  is necessary to set out the provisions of the Code relevant  to this matter.  Section 284 provides that, "When the trial  is to  be held with the aid of assessors, not less  than  three and,  if  possible, four shall be chosen  from  the  persons summoned  to  act as such" . The section  as  it  originally stood  required  that " two or more shall be chosen  as  the Judge thinks fit ", so that there had to be a minimum of two assessors.  In the year 1923, that provision was amended  so as  to  make  a  minimum of  three  assessors  an  essential requisite for a trial to be held with the aid of  assessors. A  trial  commenced with less than three  assessors  is  not authorised  by  the  provisions of this section  as  it  now stands.    Therefore,  unless  a  case  comes   within   the provisions  of the next following section 285, a trial  held in  defiance of the provisions of section 284 would  not  be legal.   Section 285, however, has no application  to  cases where  a trial is commenced with less than three  assessors. [Vide Balak Singh v. Emperor (1); Sipattar Singh v.   King-Emperor (2)].  Section 285 provides :- "(1) If in the course of a trial with the aid of  assessors, at  any  time before the finding, any assessor is  from  any sufficient  cause, prevented from attending  throughout  the trial,  or  absents himself, and it is  not  practicable  to enforce his attendance, the trial shall proceed with the aid of the other assessor or assessors. (2)If  all  the assessors are prevented  from  attending  or absent themselves, the proceedings shall be stayed and a new trial shall be held with the aid of fresh assessors." In cases contemplated by this section a trial commenced with the aid of three assessors can be (1) A.I.R. 1918 Pat. 420.   (2) A.I.R. 1942 All, 140. 978 continued  and  finished  with the aid of  less  than  three assessors.   This section, however, does  neither  authorize the substitution of an assessor for an absent assessor,  nor does  it authorise an addition of an assessor to the  number of assessors during the course of the trial.  The effect  of the  provisions  of  sections 284 and 285 is  that  a  trial cannot  be validly commenced with less than three  assessors chosen  in  the  manner prescribed by  the  Code,  but  once validly commenced it can be continued in certain cases to  a finish  if some, though not all, of the  persons  originally appointed,  attend throughout the trial.  If all of them  do not attend, then a fresh trial has to be held.  An  addition in  the number of the assessors or a change or  substitution in  their  personnel during the course of the trial  is  not warranted  by the Code; on the other hand, it is  implicitly prohibited.   The procedure prescribed by section 285(l)  is not  of a permissive nature.  It has to be followed  if  the conditions prescribed are fulfilled, and like section 285(2) it  is of a mandatory character.  No scope is left in  these provisions  for the exercise of the discretion of the  judge for  supplementing these provisions and for holding a  trial in  a  manner  different from the  one  prescribed  and  for conducting  it  with the aid of  some  assessors  originally appointed,  and also with the aid of some  others  recruited during the trial.  Section 309 provides that when a trial is concluded,  the  court  may  sum up  the  evidence  for  the prosecution  and defence and shall then require each of  the assessors to state his opinion orally and shall record  such opinions.   Sub-clause (2) of this section enacts  that  the judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors.  Sections

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326  and  327  enact  the method  and  manner  of  summoning assessors and jurors.  Section 537 provides as follows:- "Subject  to  the  provisions  hereinbefore  contained,   no finding,  sentence or order passed by a Court  of  competent jurisdiction  shall  be reversed or  altered  under  Chapter XXVII or on appeal or revision on account- 979 (a)of any error, omission or irregularity in the  complaint, summons,  warrant, charge, proclamation, order, judgment  or other  proceedings before or during trial or in any  inquiry or other proceedings under this Code, or... (c)of the omission to revise any list of jurors or assessors in accordance with section 324, or (d)of any misdirection in any charge to a jury, unless  such error,  omission, irregularity or misdirection has  in  fact occasioned a failure of justice." The first objection that was taken in the High Court to  the validity  of  the trial was that Asharam who  had  not  been summoned  as an assessor could not be appointed as such  and hence  it  should be held that the trial  commenced  with  a minimum  of two assessors in defiance of the  provisions  of section 284.  What happened was this: On the date fixed  for the  trial there was a deficiency in the number  of  persons who had been summoned and who appeared to act as  assessors, the  court then sent for Asharam whose name was in the  list of  assessors  and ordered him to sit as an  assessor.   The High  Court  took the view, and we think rightly,  that  the circumstance that the formality of issuing a summons was not gone through was a mere irregularity which was curable under section 537 of the Code, as there was no failure of  justice caused on account of that irregularity and that the trial on that  account could not be held to be bad.  This view is  in accord with the decision of the Calcutta High Court in King- Emperor  v.  Ramsidh  Rai(1) with which we  agree.   We  are constrained, however, to observe that the High Court did not fully  appreciate  the decision of the Patna High  Court  in Balak  Singh v. Emperor(2), when it said that that  decision held  a trial bad where a -person was chosen as an  assessor who  had  not  been  summoned.   In  that  case  during  the examination of the first witness only one qualified assessor was  present  in court and capable of acting  as  such,  the judge  ordered another person who happened to be present  in court  but was not in the official list of assessors to  act as an (1) 30 Crl.  L. J . 725. (2) A.I.R. 1918 Pat. 420. 980 assessor,  and it was held that as the trial commenced  with only one assessor and not with two duly qualified  assessors the  trial was abortive and contrary to law.   No  exception could  therefore  be  taken  to  the  rule  stated  in  this decision. The second objection against the validity of the trial taken before  the High Court was -founded on section 285.  It  was contended that when one of the assessors appointed  absented himself the court was bound, under section 285, to ascertain before proceeding further with the trial whether the absence of  the assessor was due to sufficient cause and whether  it was practicable to enforce his attendance and that the judge in  this case failed to observe this condition  which  alone entitled  him  to  continue the  trial  with  the  remaining assessors  and that the defect was fatal to the validity  of the  trial.  The High Court held that though there was  non- compliance  with the provisions of section 285 in the  case, this irregularity was cured by section 537 as it had not  in

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fact  caused  failure of justice.  We agree  with  the  High Court  in  this conclusion.  It is no doubt  true  that  the section enjoins on the judge a duty to find whether there is a sufficient cause for the non-attendance of an assessor and whether it is not practicable to enforce his attendance, and ordinarily  the  proceedings must represent  on  their  face whether this duty has been performed, but we think that such an  omission  on his part does not necessarily  vitiate  the trial.   We  are further of the opinion that  when  a  judge proceeds  with a trial in the absence of one or two  of  the assessors  with  the  aid  of  the  remaining  assessor   or assessors, it may be presumed that he has done so because he was  satisfied  that it was not practicable to  enforce  the attendance  of  the absent assessor or  assessors  and  that there was sufficient cause for his or their  non-attendance. If,  however,  there is evidence to a contrary  effect,  the matter   maybe  different.   Failure  to  record  an   order indicating  the reasons for proceeding with the  trial  with the  aid  of  the  remaining assessors can  at  best  be  an irregularity or an omission which must be held to 981 be such as to come within the reach of section 537 unless it has  in fact occasioned a failure of justice.  It could  not be seriously argued that such an omission can lead to such a result. Finally  the  learned  counsel contended,  also  relying  on section 285, that the sessions judge had no jurisdiction  or power  to substitute an assessor or to reinstate the  absent assessor,  or to add to the number of assessors.   When  the point  was raised before the High Court, it  fully  realized that  there  was no provision in law  which  permitted  such substitution  of an absent assessor by another  assessor  or the  subsequent reinstatement of an absent assessor  as  bad been  done  in  this  case.   It,  however,  felt  that  the irregularity  was of the same nature as  noncompliance  with the  provisions  of section 285, and as such  was  cured  by section  537 of the Code.  In regard to the addition  of  an assessor during the trial it said:- "  We have not been able to find any reported case where  an assessor  had been added in the middle of the trial  as  has been done by the learned judge.  That is perhaps due to  the fact  that no judge ever did such an obviously silly  thing, but considering that the trial, in any case, continued  with the  aid of two assessors who were there  throughout,  there was, in our opinion, substantial compliance with the mode of trial provided in the Code and the irregularity committed by the  addition of Chimniram in June, 1952, is  curable  under section  537 as it did not occasion any failure of  justice. The  sessions  judge  was  still  the  court  of   competent jurisdiction to try the case and all that he did was to  add unnecessarily one more assessor to advise him when he had no business  to do so.  We can ignore his  presence  altogether and  as the irregularity has not caused failure of  justice, the trial will not be vitiated". In  our judgment, the High Court was in error in this  view. The sessions judge during the progress of the trial not only made  a change in the personnel of the assessors  originally appointed  and also added to their number, but he.  actually took the opinions 127 982 of  all the four assessors as required by the provisions  of section 309 of the Code, and acted in accordance with  those opinions in convicting the two appellants.  It is plain that a unanimous verdict of four assessors is bound to weigh much

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more with a judge than the opinion of two persons.  We  have not been able to understand how the High Court could  ignore the  presence  of assessors altogether who had  given  their opinions and which opinions had been accepted by the  judge. The  opinion  of an assessor is exercised  in  the  judicial function imposed upon him by law, and the judge is bound  to take  it into consideration and he cannot dispense with  it. The  judge considered this trial as if lie had commenced  it with   the   aid  of  four  assessors,   and   taking   into -consideration  their opinion, he convicted the  appellants. It is difficult to assess the value which the judge gave  to the opinions of the assessors at the time of arriving at his finding and the High Court was in error in thinking that  it did no harm and caused no prejudice.  We cannot subscribe to the view of the High Court that the trial should be taken as having  been conducted with the aid of the two assessors  as sanctioned by section 285, Criminal Procedure Code.  That is not  what actually happened.  It is difficult to  convert  a trial held partly with the aid of three assessors and partly with the aid of four assessors into one held with the aid of two assessors only.  At no stage was the trial held with the aid  of two assessors only.  The third substituted  assessor attended  a part of the trial and the added fourth  assessor also  attended a part of it. None of these two were  present throughout.   Thus  the  trial  when  it  concluded  was   a different  trial from the one which was commenced under  the provisions  of section 284, Criminal Procedure Code.   To  a situation like this we think section 537 cannot be called in aid.   Such  a trial is not known to the Code and  it  seems implicitly prohibited by the provisions of sections 284  and 285.   What happened in this case cannot be described  as  a mere  error, omission or irregularity in the course  of  the trial.  It is much more serious, It 983 amounts to holding a trial in violation of the provisions of the  Code  and  goes  to the root  of  the  matter  and  the illegality  is  of a character that it  vitiates  the  whole proceedings.   As observed by their Lordships of  the  Privy Council in Subramania lyer v. -King-Emperor(’), disobedience to  an  express provision as to a mode of  trial  cannot  be regarded  as a mere irregularity.  In Abdul Rahman v.  King- Emperor (2), the distinction between cases which fall within the  rule of section 537 and those which are outside it  was pointed out by Lord Phillimore.  There it was said that  the distinction  between  Suubramania Iyer’s case (1)  and  that case  in which there was an irregularity in  complying  with the  provisions  of  section  360 of  the  Code  was  fairly obvious.  In Subramania Iyer’s case(1) the procedure adopted was  one  which  the Code positively prohibits  and  it  was possible that it might have worked actual injustice, to  the accused but that the error in not reading the statements  of witnesses to them was of a different character, and such  an omission  was  not  fatal.  In Pulukurti  Kotayya  v.  King- Emperor(3)  their  Lordships again examined  this  question. That  was  a  case  where there had been  a  breach  of  the provisions  of section 162, Criminal Procedure Code, and  it was held that in the peculiar circumstances of that case  it had  not prejudiced the accused and the case therefore  fell under  section  537 and that the trial  was  valid  notwith- standing  the breach of section 162.  Sir John  Beaumont  in delivering  the  decision of the Board  made  the  following observations which bring out the distinction between the two sets of cases:-- There  are, no doubt, authorities in India which  lend  some support to Mr. Pritt’s contention, and reference may be made

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to  Tirkha  v. Nanak (4), in which the court  expressed  the view that section 537, Criminal Procedure Code, applied only to errors of procedure arising out of mere inadvertence, and not to cases of disregard of, or disobedience to,  mandatory provisions of the Code, and to In re Madura Muthu (1) (1901) 28 l.A. 257.      (3) (1947) 74 I.A. 65. (2) (1927) 54 I.A. 96.      (4) (1927) I.L.R. 49 All- 475. 984 Vannian(1), in which the view was expressed that any failure to examine the accused under section 342, Criminal Procedure Code, was fatal to the validity of the trial, and could  not be  cured under section 537.  In their  Lordships’  opinion, this argument is based on too narrow a view of the operation of  section  537.   When a trial is conducted  in  a  manner different from that prescribed by the Code [as in Subramania lyer’s case(2)], the trial is bad, and no question of curing an  irregularity arises: but if the trial is conducted  sub- stantially  in the manner prescribed by the Code,  but  some irregularity  occurs  in  the course of  such  conduct,  the irregularity  can be cured under section 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.  The distinction drawn in  many of the cases in India between an illegality and  an irregularity  is  one of degree rather than of  kind.   This view finds support in the decision of their Lordships’ Board in Abdul Rahman v. King-Emperor(’), where failure to  comply with  section 360, Criminal Procedure Code, was held  to  be cured by sections 535 and 537.  The present case falls under section  537,  and  their Lordships  hold  the  trial  valid notwithstanding the breach of section 162." In our judgment, the trial conducted in the present case was conducted in a manner different from that prescribed by  the Code  and is bad and no question here arises of  curing  any irregularity.  The Code does not authorize a trial commenced with  the aid of three named assessors to be  conducted  and completed with the aid of four assessors.  The  substitution of one assessor by another and an addition to the number  of assessors appointed at the commencement of the trial is  not sanctioned  by section 285, Criminal Procedure Code, nor  is it  authorized  by  section 284.  On  the  other  hand,  the language  of  section  285(l) read with  the  provisions  of section 285(2) implicitly bans the holding of such a  trial. It is not possible to say with any degree (1)  (1922) I.L.R. 45 Mad. 82o. (2)  (1901) 28 I.A. 257. (3) (1927) 54 I.A. 96. 985 of certainty to what extent the opinion of the outgoing  and the  incoming assessors who did not attend the whole of  the trial  influenced the decision in the case ; but as  such  a trial  is unknown to law, it has to be presumed that it  was illegal. Mr.  Mehta  for the State Government  contended  that  under section  309(2) the opinion of assessors is not  binding  on the  sessions judge and their presence or absence  does  not affect  the  constitution of the court and that as  at  this trial at least two of the assessors originally appointed sat throughout  the trial it should be held that the  trial  was substantially  a  trial  conducted in  accordance  with  the provisions  of the Code.  The learned counsel did not go  to the  length  of urging that a trial without the aid  of  any assessors whatever was a good trial under the Code.  Such  a contention, if raised, would have to be negatived in view of the  clear provisions of section 284 and of sub-section  (2)

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of section 285.  The appointment of at least three assessors is  essential for the validity of a trial of this  character at  its commencement, and once validly commenced,in  certain events, it can be validly concluded if at least one of  them remains  present  throughout, while others drop out;  but  a trial  conducted in the manner in which it was done in  this case is wholly outside the contemplation of the Code and  it is  not possible to hold that it was concluded according  to the provisions of the Code.  The provision in the Code  that the  opinion of the assessor is not binding on the  sessions judge  cannot  lend  support  to  the  contention  that  the sessions  judge is entitled to ignore their very  existence. As already pointed out, though he may not be bound to accept their  opinions,  be is certainly bound to  take  them  into consideration.   The weight to be attached to such  opinions may well vary with the number of assessors. Mr.  Mehta to support his contention placed reliance on  the majority  decision of the Madras High Court in  King-Emperor v. Tirumal Reddi (1).  In that case the trial continued  for about seven weeks.  During that (1)  (1901) I.L.R. 24 Mad. 523. 986 period one of the assessors was permitted to absent  himself during  two whole days, and five half days respectively,  at first,  so that he might visit his mother on her  death-bed, and  subsequently, to perform the daily  obsequies  rendered necessary  by her decease.  He then resumed his seat  as  an assessor  and continued so to act until the  termination  of the  trial,  all  the depositions recorded  in  his  absence having been read by him on his return.  At the conclusion of the  trial  the sessions judge invited the opinion  of  each assessor, and recorded it.  The opinion of each was that all the  accused  were guilty and the judge concurring  in  that opinion, convicted. the accused.  On appeal it was contended that  the  judge had acted contrary to law in  allowing  the assessor  who  had  been absent to resume  his  seat  as  an assessor  and in inviting and taking into consideration  his opinion  in deciding the case.  It was held by the  majority of  the  court that the finding and  the  sentence  appealed against had been passed by a court of competent jurisdiction within  the meaning of section 537 of the Code and that  the defect  in  the trial did not affect its  validity  and  was cured  by that section as the irregularity had not  in  fact occasioned a failure of justice.  Mr. Justice Davies took  a different  view.   This decision was clearly  given  on  the peculiar  facts  and circumstances of that case  and  is  no authority in support of the view contended for by Mr. Mehta. For the reasons given above we are constrained to hold  that the  trial of the appellants conducted in the  manner  above stated  was  bad and the appellants have to  be  retried  in accordance with the procedure prescribed by the Code. In  the result we allow this appeal, quash  tile  conviction and  sentence  passed on the appellants,  and  direct  their retrial  by  the  sessions  judge  in  accordance  with  the procedure prescribed by the Code. Appeal  allowed Retrial ordered. Agent for the respondent: G. H. Rajadhyaksha. 987