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TMI Blog1933 (11) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... them was absent. The case however was not taken up on that day and was adjourned. On 8th December 1932, the next day of hearing, one of the Honorary Magistrates happened to be absent. He rejoined on the next date and then continued to be present all along and ultimately took part in delivering and signing the judgment. On the 8th of December, when one of the Magistrates was absent, some witnesses ware examined and cross-examined. All the three Honorary Magistrates unanimously came to the conclusion that the accused were guilty and convicted them. Their appeal was dismissed by a Magistrate of the First Glass. On revision a point was raised before the learned Judge that inasmuch as one of the Honorary Magistrates was absent on one day, the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Sections 15 and 16, and the Magistrates constituting the same have been present on the Bench throughout the proceedings. 3. We are not now concerned with the trend of rulings prior to this addition, but there are three recent cases of this. Court in which this added section has been interpreted. The case of Chiteshwar Dube v. Emperor A.I.R. 1932 All. 127 was somewhat similar to the present ease, inasmuch as one of the three Magistrates had been absent on a few occasions but was present at the time of the delivery of the judgment. The learned Judge set aside the conviction and ordered a retrial. So far as the facts go there can be no question that the conclusion was right. But there are certain observations in the judgment which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed member can replace an outgoing member on the Beech trying the case, without necessitating a fresh trial, even where his presence is necessary for the purpose of a quorum, we would not agree with that view. In Ram Khelawan v. Sheo Nandan A.I.R. 1932 All. 191, another learned Judge had a case before him in which one of the three Magistrates was not present on some of the days of the hearing and the two Magistrates who had been present throughout actually differed in their conclusions. The third Magistrate who had been present on soma days joined them and agreed with the Magistrate who was in favour of the acquittal. It was on account of his opinion that the accused were acquitted. The learned Judge set aside the acquittal and ordered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly drop out and never rejoin, so that although there has been a slight change in the constitution of the Bench by the dropping out of the member or members, the remaining members continue to be Magistrates who constitute the Bench and who are present on the Bench throughout the proceedings. (2) Another possible case, which is not likely to have been in the contemplation of the legislature is where a change in the constitution of the Bench may take place in the sense of a replacement, of some of the members of the Bench who take no part in the trial of the case at all, but for such a contingency no special provision was necessary. 7. It seems most likely that the section is intended to apply to only such cases where one or more memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, vis can only infer that such defect would he irregular. The defect is not such as involves a direct infringement of any specific provisions of the Act, but is contrary to the spirit and the principle underlying Section 350-A. We think that we cannot regard it as anything more than an irregularity in the judgment or proceeding within the meaning of Section 537 of the Act. But under that section no irregularity in the judgment or proceeding would justify a reversal or alteration of the order, unless such irregularity has in fact occasioned a failure of justice. 8. It is therefore necessary to see whether in this particular case there has been a failure of justice. Cases of the type of Ram Khelawan v. Sheo Nandctn A.I.R. 1932 Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f he joins in the deliberations, there is likelihood of a failure of justice. 9. The learned advocate for the complainant has urged before us that in view of the explanation to Section 537 which emphasizes that in order to determine whether there has been a failure of justice, an omission to raise objection at an early stage of the proceeding is very material. It is pointed out that in the grounds of appeal before the First Glass Magistrate no point was taken that there had been a failure of justice on account of the third Honorary Magistrate rejoining at the later stage. But it is rightly pointed out on behalf of the accused that in view of the rulings of this Court, particularly that of Chiteshwar Dube v. King-Emperor A.I.R. 1932 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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