C.B.Capoor, J. - (1.) This reference has been made by the learned Additional District Magistrate, Agra, recommending that the order of the Bench Magistrate, Firozabad, convicting the applicants of an offence under Section 13 of the Gambling Act and sentencing each of them to a fine of Rs. 25/- and in default to undergo simple imprisonment for 15 days be set aside, on the ground that all the members who constituted the Bench were not present throughout the proceedings. The reference was admitted to a regular hearing by our brother Bishambhar Dayal, J. who directed the papers to be laid before the Hon'ble the Chief Justice for constituting a larger Bench for consideration as to whether the previous rulings of this Court like Dasrath Rai v. Emp A.I.R. 1934 All. 144 : 1934 A.L.J. 376 on the interpretation of Section 350-A of Cr.P.C. were still good law in view of the amendment of Section 350 of Cr.P.C. by the Criminal Law Amendment Act 1955 and it is in these circumstances that the Reference has been listed up before a Division Bench for hearing.
(2.) It is not disputed that all the members of the Bench of Magistrate who decided the case were not present throughout the proceedings. Section 350-A of Cr.P. C. reads as below:- "No order or judgment of a Bench of Magistrates shall be invalid by reason only a change having occurred in the constitution of the Bench in any case in which the Bench by which such order or judgment is passed is duly constituted under Section 15 and 16, and the Magistrate constituting the same have been present on the Bench throughout the proceedings." The aforesaid section was introduced in the Code by the Criminal Procedure Amendment Act 1923 (Act No. XVIII of 1923). Prior to the incorporation of the aforesaid section it was uniformly held that, "Where a judgment is delivered by some members of the Bench Magistrate who formed the necessary quorum and had been present throughout the proceedings the judgment would be perfectly valid vide Khuda Bux v. Emp. 18 Cr.L.J. 749 = 15 A.L.J. 463 , Vankatarama Aiyar v. Saminatha Aiyar I.L.R. 38 (Mad.) 797 and Brij Bhukhan v. Ram Kirat A.I.R. 1923 (Oudh) 163 Judicial opinion was, however, divergent on the question if a judgment by a Bench of Magistrate some of whom were not present when the evidence was recorded could be considered to be valid. According to one view such a judgment was a nullity vide Damri Thakur v. Bhowani Sahoo I.L.R. 23(Cal.)194 , Girdhari v. Emp. A.I.R. 1921 (Lah.) 135 and Re Subramania Ayyar I.L.R. 38 Mad. 304. According to the other view this was a mere irregularity and the judgment would not be valid unless the accused was prejudiced by the course adopted vide Emp. v. Mathura I.L.R. 41 s(All.) 116 : 16 A.L.J. 884 . It was in the aforesaid state of the rulings that Section 350-A was put on the statute book. The section is not happily worded inasmuch as it does not provide as to when would the order of the Bench Magistrates be valid. What it provides is that such an order would not be invalid if certain conditions, namely, that a Bench of Magistrates is duly constituted and the members of the Bench have been present throughout the proceedings are fulfilled. The section provides that:- "No order or judgment of a Bench of Magistrates shall not be invalid by reason only of a change having occurred in the constitution of the Bench in any case in which the Bench by which such an order or judgment is passed is duly constituted under Sections 15 and 16, and the Magistrates constituting the same have been present on the Bench throughout the proceedings." An analysis of the aforesaid section will indicate that it comes into play when there has been a change in the constitution of the Bench. The section has come up for consideration in several cases. In the case of Dasrath Rai and others v. Emp. A.I.R. 1934 All. 144 : 1934 A.L.J. 376 , the facts were that three Honorary Magistrates (any two of whom formed the quorum) constituted the Bench which had power to try a case. On most of the hearings all the three Honorary Magistrates were present, but on one of the hearing when some witnesses were examined one of the Magistrate happened to be absent. He re-joined on the next date and then continued to be present all along and ultimately took part in delivering and signing the judgment. All of them unanimously came to the conclusion that the accused were guilty and convicted them.
(3.) It was held that as one of the Honorary Magistrates had not heard the whole evidence and had not been throughout the proceedings and took part in the deliberation and joined the others in arriving at the final decision, there was every likelihood of his influencing his colleagues by virtue of his absence on some of the material dates he became incompetent to form a true opinion on the merits of the case and if he joined in the deliberations, there was likelihood of a failure of justice. The conviction was, therefore, illegal and should be set aside.;