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PETITIONER: PAYARE LAL

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 30/08/1961

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. SINHA, BHUVNESHWAR P.(CJ) MUDHOLKAR, J.R.

CITATION:  1962 AIR  690            1962 SCR  Supl. (3) 328  CITATOR INFO :  R          1962 SC1198  (30)  D          1977 SC1066  (30)

ACT: Criminal Trial--Transfer of Special Judge--Successor, if can try  on  evidence  partly  recorded by  him  and  partly  by predecessor--Special   Judge,  if  a   magistrate--Want   of competency,  if  can be cured--Criminal Law  Amendment  Act, 1952  (46 of 1952). s. 8, sub-ss. (1), (3) Code of  Criminal Procedure, 1898 (V of 1898), ss. 251 to 259, 350, 537.

HEADNOTE: The  appellant  and another were  prosecuted’  for  offences under  s.  5(2) of the Prevention of Corruption  Act,  1947. The  trial commenced before the special judge who heard  the evidence   but   before  he  could  deliver   judgment   was transferred and was succeeded by another special judge.  The latter  did  not recall the witnesses and did not  hear  the evidence  over again, but proceeded with the  trial  without any  objection from either side from the stage at which  his predecessor had left.  He convicted both the accused. On  appeal, the Punjab High Court held that s. 350  Criminal procedure  Code applied to the trial before a special  judge in view of s. 8(1) of the Criminal Law Amendment Act,  1952, and the succeeding special judge was entitled to proceed  on the evidence recorded by his predecessor. The  controversy is whether s. 330 of the Code  of  Criminal Procedure  is applicable to a special judge under  sub-s.(1) ,of s. 8 of the Criminal Law Amendment Act, 1952, though  it is  not applicable under sub-s. (3) of the  Act.   Therefore the  question is what is meant by the words  "The  procedure prescribed by the court...... for the trial of warrant cases by magistrate" in sub-s.(1) of s. 8 of the Act, and  whether s.  350  of  the Code prescribe one of  the  rules  of  such procedure. The  Act  was  since amended and  therein  it  is  expressly provided  that s.350 of the Code applies to the  proceedings before  a special judge.  The amendment does not govern  the present  proceeding as the impugned part of the  proceedings was concluded before the amendment. Held,  that  the Criminal Law Amendment Act, 1952,  did  not

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intend  that s. 350 of the Criminal Procedure Code would  be available  as a rule of procedure prescribed for the  trials of  warrant cases, to a special judge as the  special  Judge was not a magistrate for the purpose of the Act not did  the Act require before the amendment that he was to be deemed to be such.                             329 The  Act  in using the words "procedure  prescribed  by  the Code......  for  the trial of warrant cases  by  magistrate" meant only the ss. 251 to 259 of the Criminal Procedure Code as  expressly  referred  in  the  code  as  containing   the procedure  St specified for the trials of warrant  cases  by magistrate  and did not contemplate s. 350 of the Code as  a procedure so prescribed. Held,  further,  that  where in a case   there  is  want  of competency  and not a mere irregularity, s. 537 of the  Code of  Criminal  Procedure has no application.   It  cannot  be called in aid to make what was incompetent, competent. Held,  also, that it is the right of an accused person  that his  case  should be decided by a judge who  has  heard  the whole of it and that very clear words would be necessary  to take away such an important and well established right. In  the  present case the succeeding special  judge  had  no authority  under  the law to proceed with the trial  of  the case from the stage at which hi-, predecessor in office left it, and the conviction of the appellant cannot be  supported as  he had not heard the evidence in the case himself.   The proceeding before the succeeding special judge were  clearly incompetent.  There has been no proper trial of the case and there should be one. In re-Vaidyanatha Iyer, (1954) 1 M.. I,. cable. Pulukuri  Kotayya v. King Emperor, (1947) L. R. 74 I  A.  65 and Kimbray v. Dapper, (1868) 3 Q. B. 160, referred to In re-Fernandez. (1958) 11 M. L. J.- 294, approved,.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 240  of 1960. Appeal  by special leave from the judgment  and-order  dated November  25,  1958, of the Punjab High  Court  in  Criminal Appeal No. 114 of 1954. Jai  Gopal  Sethi,  C. L. Sareen and R. L.  Kohli,  for  the appellant. N.   S. Bindra, R. H. Dhebar and D. Gupta, for respondent. 1961.     August  30.   The  Judgement  of  the  Court   was delivered by SARKAR,  J.  The appellant Payare Lal was the  Tehsildar  of Patiala.  He and Bishan Chand, a Patwar. clerk of the Tehsil Office,  were  prosecuted for offences under s.5(2)  of  the Prevention of 330 Corruption Act, 1947.  The Criminal Law Amendment Act,  1952 (Act XLVI of 1952), to which it will be convenient hereafter to  refer  as the Act, required the trial to be  held  by  a special  Judge  appointed under it and  in  accordance  with certain  provisions  of  the  Code  of  Criminal   Procedure mentioned  in  s. 8 of the Act.  The Principal  question  in this  appeal  turns  on the construction of  sub-s.  (1)  of this .section which we will later set out. The  trial  commenced before S. Narinder Singh  the  special Judge,  Patiala.  He heard the evidence but before he  could deliver  a judgment he was transferred and was succeeded  by S.  Jagjit  Singh.   S.  Jagjit Singh  did  not  recall  the

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witnesses  and hear the evidence over again,  but  proceeded without any objection from either side, with the trial  from the  stage at which his predecessor had left it  and  having heard  the  arguments  of the  advocates  for  the  parties, delivered  his judgment convicting both the accused  of  the offences with which they had been charged and passed certain sentences on them. The  accused appealed against their conviction to  the  High Court  of  Punjab.  The appeals came to be  heard  by  Mehar Singh  J.,  who,,  though no point had  been  taken  by  the accused, himself felt considerable difficulty as to  whether S.  Jagjit  Singh had the power to decide the  case  on  the evidence recorded by his predecessor and referred the matter to  a  larger  bench  taking the  view  that-if  the  course followed   was  defective,  the  defect  would  be  one   of jurisdiction  of  the Court and could not be  cured  by  the consent of parties. The case was thereupon heard by a bench of that High,  Court constituted  by  Gurnam Singh and Mehar Singh JJ.  who  took different  views.  Gurnam Singh J. held that s. 350  of  the Code applied to the trial before a special Judge in view  of s.  8(1) of the Act and under the terms of s. 350, which  we will later set out, S. Jagjit Singh was entitled to  proceed on the evidence recorded by his predecessor 331 S.   Narinder  Singh,  while  Mehar Singh  J.,  was  of  the opinion that s. 8(1) of the Act did not make s. 350 of  that Code applicable to such a trial.  He also held that what  S. Jagjit Singh had done was not a matter of mere  irregularity curable  under  s.  537 of the Code.  The  matter  was  then referred  to Passey J., who agreed with Gurnam Singh  J.  On the question of s. 537 of the Code, Gurnam Singh and  Passey JJ. expressed no opinion in the view that they had taken  of s. 8(1) of the Act. The appeals were thereafter heard on the merits by Tek Chand J.  who upheld the conviction of the appellant  but  reduced the  sentence  passed on him.  He,, however,  acquitted  the other accused Bishan Chand giving him the benefit of  doubt. The  appellant  has  now come up to this  Court  in  further appeal with special leave.  There is no appeal by the  State against the acquittal of Bishan Chand. There  is no covntroversy that the general principle of  law is  that  a judge or magistrate can decide a  case  only  on evidence  taken  by  him.   Section 350 of  the  Code  is  a statutory  departure from this principle.  That  section  so far as material was at the date S. Jagjit Singh decided  the case in these terms :               S.    350.   Whenever  any  Magistrate,  after               having     heard and recorded the whole or any               part of the evidence in an inquiry or a trial,               ceases  to exercise jurisdiction therein,  and               is succeeded by another Magistrate who has and               who   exercises   such   jurisdictions,    the               Magistrate  so  succeeding  may  act  on   the               evidence  so recorded by his  predecessor,  or               partly recorded by his predecessor and  partly               recorded  by himself or be may resumption  the               witnesses and recommence the inquiry or trial It  is  only if this provision was available  to  S.  Jagjit Singh that the course taken by him can be supported. 332 As  we  have  said earlier, s. 8 of the  Act  makes  certain provisions of the Code applicable to the proceedings  before a special Judge The question is whether s. 350 of the  Code. was  one  of such provisions.  The answer to  this  question

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will depend on the construction of sub ss.(1) and (3) of  s. 8 of the Act the material portions of which we now set out.               S.    8   (1)-A   special   judge   may   take               cognizance  of  offences without  the  accused               being  committed  to him. for  trial,  and  in               trying  the accused persons, shall follow  the               procedure  prescribed by the Code of  Criminal               Procedure, 1898 ... for the trial of- warrant’               cases by magistrates.               (3)   Save   as   provided   in    sub-section               (1)  ........  the provisions of the  Code  of               Criminal  Procedure,  1898, shall, so  far  as               they are not inconsistent with this Act, apply               to  the proceedings before a special  Judge  ;               and  for the purposes of the said  provisions,               the Court of the special judge shall be deemed               to be a Court of session trying cases  without               a    jury    or    without    the    aid    of               assessors........................ In substance these sub-sections provide that a special Judge shall  follow the procedure prescribed by the Code  for  the trial  of  warrant  cases by magistrates and  save  to  this extent., the provision-,, of the Code applicable to a  Court of  session,  shall govern him as if he were  such  a  Court subject to certain qualifications which are not relevant for the  present case.  There is no controversy that s.  350  of the  Code is applicable only to magistrates and not a  Court of  session  and cannot therefore be applied  to  a  special Judge under sub-s. (3) as it makes only those provisions  of the  Code applicable to him which would apply to a Court  of session.   The only controversy is whether that  section  is applicable to a special Judge under sub-s.(1) of s. 8 of the Act.  If it is so applicable, it must be applied 333 though under sub-s. (3) it is not applicable, for this  sub- section, is to have effect "’Save as provided in  subsection (1)". The  real  question  is, what is meant  by  the  words  "the procedure prescribed by the Code .................. for  the trial of warrant cases by magistrates" In s. 8(1) of the Act ? Does s. 350 of the Code prescribe one of the rules of such procedure ? It is necessary however to point out that by  an amendment made in the Act after judgment had been  delivered in  this  case  by S. Jagjit Singh, it  has  been  expressly provided that s. 350 of the Code applies to the  proceedings before a special Judge.  On the amended Act, therefore,  the question  that  has  arisen in this case,  would  no  longer arise.   For reasons to be hereafter stated, this  amendment clearly  does  not govern the proceedings before  S.  Jagjit Singh  and this case has to be decided without reference  to the amendment. Is  was  once  held  by the Madras  High  Court  in  In  re, Vaidyanatha  Iyer (1) that s. 350 of the Code  prescribed  a rule  of  procedure  for  the  trial  of  warrant  cases  as mentioned in s. 8 (1) of the Act.  This seems to be the only reported  decision  taking that view.  All  other  decisions which  have  been brought to our notice  take  the  contrary view.  Even in Madras, in In re Fernandez (2), a Full  Bench of  the High Court has now hold that s. 350 of the Code  was not  applicable to a special Judge and has overruled  In  re Vaidyanatha  Iyer (1).  That appears to be the  position  on the authorities. It  is true that s. 350 of the Code is a provision  applying to  all  magistrates  and therefore, also  to  a  magistrate trying a warrant case.  That however does not in our opinion

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decide the question.  We think it ’relevant to observe  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  and  we agree with the view expressed in Fernandez’s case(2) (1)  (1954) 1 M.L.J. 15; A.I.R. (1954) Mad. 350. (2) (1958) 11 M.L.J. 294. 334 that  very clear words would be necessary to take away  such an  important and well ’established right.  We find no  such clear words here. We  turn now to the word used.  When sub-s. (1) of s.  8  of the Act talks of a procedure prescribed by the Code for  the trial  of warrant cases by magistrates it is  reasonable  to think  that  it has the provisions and the language  of  the Code  in view.  When we look at the Code, we find  that  ch. XXI  is  headed "of the.  Trial of Warrant  Cases  by  Magi- strates".  This chapter consists of ss. 251 to 259.  Section 251 is in these terms :               S.    251  In  the trial of warrant  cases  by               Magistrates, the Magistrate shall,-               (a)   in  any   case instituted  on  a  police               report,  follow  the  procedure  specified  in               section 251A; and               (b)   in any other case, follow the  procedure               specified  in  the other  provisions  of  this               Chapter. The  Code,  therefore, expressly refers to  ss.  251-259  as containing the procedure specified for the trial of  warrant cases  by  magistrates;  this then,,  is  the  procedure  it prescribes  for  the  trial  of such  cases.   It  would  be legitimate,  therefore, to think that the Act in  using  the words "procedure prescribed by the Code...... for the  trial of  warrant  cases  by magistrates" also  meant  only  these sections  of the Code and did not contemplate s. 350 of  the Code  as a procedure so prescribed, though that  section  is applicable  to the proceedings before a magistrate trying  a warrant  case.  It does not seem to us that the  words  "the procedure  prescribed by the Code......... for the trial  of warrant cases by magistrates" meant a procedure which may be followed  by magistrates in all cases.  Further more s.  350 occurs  in  a chapter of the Code which deals  with  general provisions  relating  to inquiries and trials and is  not  a provision which has been specifically prescribed by the Code for application to the                             335 trial  of  warrant cases by magistrates, as are ss.  251  to 259. Again, s. 350 of the Code cannot, without doing violence  to the  language  used  in it, be applied  to  the  proceedings before  a special Judge Clearly it cannot be, applied  where its terms make such application impossible.  Now the section can  be applied only when one magistrate  succeeds  another. It  lays  down what the succeeding magistrate can  do.   Now suppose  one  special Judge succeeds another.   How  can  he exercise  the powers conferred by the section ? The  section applies  only  when the predecessor is  a  magistrate.   The predecessor in the case assumed is however a special  Judge. Such a Judge is not a magistrate for the purpose of the Act, nor does the Act require that he is to be deemed to be such. Section 8 (1) of the Act which only requires a special Judge to  follow  the procedure for the trial of a  warrant  case, cannot  justify  the  creation  of  a  fiction  making   the predecessor  special  Judge, a magistrate.  It  is  of  some interest  to note here that the amendment to the  Act  which expressly makes s. 350 of the Code applicable to proceedings

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before  a special Judge also provides that for the  purposes of so applying the section, "a special Judge shall be deemed to be a magistrate".  Clearly, the legislature thought  that unless  such a fiction was created, the application  of  the section  to  the proceedings before a  special  Judge  would create  difficulties or anomalies.  Therefore also, the  Act could not in our view, have intended that s. 350 of the Code would  be  available  to  a special  Judge  as  a  rule,  of procedure prescribed for the trial of warrant cases. For all these reasons, we would prefer the opinion expressed by  Mehar Singh J. We think that under the Act, as it  stood before  its amendment as aforesaid, s. 350 of the  Code  was not available when one special Judge succeeded another.  ’we hold that S. Jagjit Singh had no authority 336 under the law to proceed with the trial of the case from the stage at which S. Narinder Singh left it.  The conviction by S.  Jagjit Singh of the appellant cannot be supported as  he had  not  heard  the  evidence  in  the  case  himself   The proceedings before him were clearly incompetent. It is then said that this defect was a mere irregularity and the  conviction of the appellant can, if sustainable on  the evidence, be upheld under EA. 537 of the Code.  In regard to this  section, it was said by the Privy Council in  Pulukuri Kotayyam v. King Emperor (1),               "When  a  trial  is  conducted  in  a   manner               different from that prescribed by the Code (as               in N. A. Subramania Iyer’s case, 1901 L.R.  28               I.A.  257), 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 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".  It  seems  to  us  that the case  falls  within  the  first category mentioned by the Privy Council.  This is not a case of  irregularity but want of competency.  Apart from s.  350 which,  as  we have said, is not applicable to  the  present case,  the,  Code, does not conceive of such a  trial.   The trial offends the cardinal principle of law earlier  stated, the acceptance of which by the Code is clearly manifest from the  fact  that  the  Code embodies  an  exception  to  that principle  in s. 350.  Therefore, we think that s.  .537  of the Code has no application.  It cannot be called in aid  to make  what  was incompetent, competent.  There has  been  no proper trial of the case and there should be one. (1)  (1947) L.R. 74 I.A. 65, 75.  337 ’Then it is said or,. behalf of the appellant that we should not  send  the  case back for a fresh trial  but  decide  it ourselves  on the evidence on the record.  Coming  from  the appellant,   it   is  a  somewhat   surprising   contention. According to him, a point which we have accepted, there  has realy  been  no proper trial of the case.  It  would  follow from this that there has to be one.  In the absence of  such a trial we cannot even look at the evidence on the record. Lastly,  we have to say a few words on the amendment of  the Act  expressly making s. 350 of the Code applicable  to  the proceedings,  before  a special Judge.  The  amendment  came long  after the decision of the case by S. Jagjit Singh  and had  not expressly been made retrospective.  It was said  on

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behalf of the respondent, the prosecutor, that the amendment being   ’in   a   procedural   provision   was   necessarily retrospective, and, therefore, no exception can now be taken to  the action taken by S. Jagjit Singh. Assuming  that  the rule contained in s.     350  of the Code is only a rule  of procedure,  all that would follow would be that it would  be presumed to apply to all actions pending as well as future : Kimbray v. Draper (1).  Such a retrospective operation  does not assist the respondent’s contention. Nor do we think it an argument against sending the case back for  retrial  that the special Judge now  hearing  the  case would be entitled to proceed on the evidence recorded by  S. Narinder  Singh in view of the amendment.  Whether he  would be  entitled  to do so or not would depend  on  whether  the amended Act would apply to proceedings commenced before  the amendment.  It has to be noted that the impugned part of the proceedings  was  concluded before the amendment.   On  this question, we do not propose to express any opinion.  In  any event, under s. 350 as it now stands a succeeding magistrate (1)  [1868] 3 Q.B. 100. 338 liar,  power to resummon and examine a witness further.   We cannot  speculate what the special Judge who tries the  case afresh  will  think fit to do if s. 350 of the Code  is  now applicable  to  the proceedings before him.  For  all  these considerations,  we think it fit to send the case  back  for retrial. We therefore, allow the appeal and set aside the  conviction of  the appellant and the sentence passed on him.  The  case will now go back for retrial According to law. Appeal allowed