C.M.LODHA, J. - (1.) THE Special Judge, Ganganagar by his Judgment dated 12 -3 -1065 acquitted the respondent Bhagatram under Section 161, 120B, 347, 389 and 218, Indian Penal Code and Section 5(1)(a) of the Prevention of Corruption Act, 1947 The other respondent Ramswaroop, who was jointly tried with Bhagatram was also acquitted for offences under Section 165A and 120B, Indian Penal Code. The State find an appeal against both the accused from the order of their acquittal. When we heard this appeal, the learned Deputy Government Advocate conceded that the offence under Section 218, Indian Penal Code was not made out against Bhagatram. Both of us were agreed that the offences under Section 347, 389, 120B and 218, Indian Penal Code were also not proved against Bhagatram. There was however, difference of opinion between us on the question whether Bhagatram was guilty under Section 161, Indian Penal Code and Section 5(1)(a) of the Prevention of Corruption Act. I was of the opinion that Bhagatram is guilty under these Sections and accordingly convicted and sentenced him under both these sections. Tyagi J. wae however of opinion that the order of the trial Judge acquitting Bhagatram of all the charges must be upheld. As regards Ramswaroop both of us were agreed that the order of acquittal passed in his favour by the trial court must be maintained Since we were equally divided in opinion en the question whether Bhagatram should be convicted and sentenced under Section 161, Indian penal Code and Section (1)(a) of Prevention of Corruption Act we directed that the matter may be laid before the Hon'ble the Chief Justice for referring it to a third Judge. Thus the case was than laid before the Hon'ble the Chief Justice who directed that the case be listed before Jagat Narain J.
(2.) JAGAT Narayan J. has given his opinion that Bhagatram is guilty under Sections 120B, 218, and 317, Indian Penal Code. In agreement with me, he has convicted Bhagatram under Section 161, Indian Penal Code, and sentenced him to one year's rigorous imprisonment and a fine of Rs. 500/ - in default of payment of fine to undergo further rigorous imprisonment for three months. He has not passed any sentence under Section 120B Indian Penal Code, on the ground that the offence under Section 161, Indian Penal Code, was actually committed in pursuance of the conspiracy. He has further held that Bhagatram should be sentenced to rigorous imprisonment for one year under Section 218, and 347, Indian Penal Code each, though the sentences under these Section have been made to run concurrently with the sentence imposed under Section 161, Indian Penal Code With this opinion the case has been returned to us for pronouncing the Judgment in accordance with the opinion given by the third Judge under Section 429, Criminal Procedure Code. Mr. Bhargava appearing on behalf of Bhagatram has raised two objections. He has submitted that we had already upheld the order of acquittal of Bhagatram under Sections 120B, 218 and 347, Indian Penal Code and dismissed the appeal of the State with respect to these offences and, consequently, it is urged that the third Judge had no jurisdiction to take a different view of the matter. It is argued that we should not pronounce the judgment in accordance with his opinion lest it may amount to setting aside oar judgment dated 24 -9 -1968. The second objection raised by Mr. Bhargava is that Jagat Narayan J. could not have convicted Bhagatram of the offence under Section 161, Indian Penal Code, on the basis of his finding that the offence under Section 161, Indian Penal Code was committed by Bhagatram in pursuance of the conspiracy entered with Ramswaroop, in view of the fact, that the other person to the conspiracy viz. Ramswaroop had been acquitted by the special judge of the charge of conspiracy and his acquittal had not been disturbed by us nor by Jagat Narayan J. In other words the contention of Mr. Bhargava is that the order of conviction of Bhagatram under Section 161 Indian penal Code ordered by Jagat Narayan J. is patently erroneous, and our judgment should not follow his opinion. He has urged that the case may be referred to other Judge after ignoring the opinion of Jagat Narain J. or the whole case may be laid before a larger Bench for final Judgment.
(3.) ON the other hand, the learned Deputy Government Advocate, appearing on the behalf of the State has contended that under Section 429, Criminal Procedure Code, our Judgment must follow the opinion of Jagat Narayan J. in toto.;