Summarize the following court judgment. 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 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 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 8(1) 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 8(1) 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 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 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 ss.(1) 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 s.(1) 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 8(1) 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 case(2) (1) ; A.I.R. (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 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 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) 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 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.

The appellant and another were prosecuted ' for offences under section 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 section 350 Criminal procedure Code applied to the trial before a special judge in view of section 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 section 330 of the Code of Criminal Procedure is applicable to a special judge under sub s.(1) 	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 s.(1) 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 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 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	.