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TMI Blog1961 (8) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... ld deliver a judgment he was transferred and was succeeded by S. Jagjit Singh. S. 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceed 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 ((1947) L.R. 74 I.A. 65, 75.), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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