minal 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 section Bindra R H Dhebar and D Gupta for respondent
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 s52 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 section 8 of the Act
The Principal question in this appeal turns on the construction of sub section
1 of this section which we will later set out
The trial commenced before section Narinder Singh the special Judge Patiala
He heard the evidence but before he could deliver a judgment he was transferred and was succeeded by section Jagjit Singh
section Jagjit Singh did not recall the 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 section 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 section 350 of the Code applied to the trial before a special Judge in view of section 81 of the Act and under the terms of section 350 which we will later set out section Jagjit Singh was entitled to proceed on the evidence recorded by his predecessor 331 section Narinder Singh while Mehar Singh J was of the opinion that section 81 of the Act did not make section 350 of that Code applicable to such a trial
He also held that what section Jagjit Singh had done was not a matter of mere irregularity curable under section 537 of the Code
The matter was then referred to Passey J who agreed with Gurnam Singh J On the question of section 537 of the Code Gurnam Singh and Passey JJ
expressed no opinion in the view that they had taken of section 81 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 section Jagjit Singh decided the case in these terms  section 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 section Jagjit Singh that the course taken by him can be supported
332 As we have said earlier section 8 of the Act makes certain provisions of the Code applicable to the proceedings before a special Judge The question is whether section 350 of the Code
was one of such provisions
The answer to this question will depend on the construction of sub ss1 and 3 of section 8 of the Act the material portions of which we now set out
section 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 section 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 section
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 s1 of section 8 of the Act
If it is so applicable it must be applied 333 though under sub section
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 section 81 of the Act  Does section 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 section Jagjit Singh it has been expressly provided that section 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 section 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 section 350 of the Code prescribed a rule of procedure for the trial of warrant cases as mentioned in section 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 section 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 section 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 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 case2 1  AIR 1954 Mad
2 334 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 section
1 of section 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 sections 251 to 259
Section 251 is in these terms  section 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 sections 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 section 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 section 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 sections 251 to 259
Again section 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 section 350 of the Code applicable to proceedings 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 section 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 section 350 of the Code was not available when one special Judge succeeded another we hold that section Jagjit Singh had no authority 336 under the law to proceed with the trial of the case from the stage at which section Narinder Singh left it
The conviction by section 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 vs 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 LR 28 IA 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 section 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 section 350
Therefore we think that section 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 LR 74 IA 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 section 350 of the Code applicable to the proceedings before a special Judge
The amendment came long after the decision of the case by section Jagjit Singh and had not expressly been made retrospective
It was said on 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 section Jagjit Singh
Assuming that the rule contained in section 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 vs 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 section 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 section 350 as it now stands a succeeding magistrate 1 338 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 section 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


Summary:
The appellant and another were prosecuted  for offences under section 52 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 section 350 Criminal procedure Code applied to the trial before a special judge in view of section 81 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 section 330 of the Code of Criminal Procedure is applicable to a special judge under sub s1 of section 8 of the Criminal Law Amendment Act 1952 though it is not applicable under sub section
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 s1 of section 8 of the Act and whether section 350 of the Code prescribe one of the rules of such procedure
The Act was since amended and therein it is expressly provided that s350 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 intend that section 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 sections 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 section 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 section 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 vs King Emperor 1947 L R 74 I A 65 and Kimbray vs Dapper  referred to In re Fernandez
1958 11 M L J 294 approved