Full Judgment
Allsop, J.
1. This is a reference by the learned Sessions Judge of Jhansi. The applicants were tried before a Bench of Magistrates and sentenced to fine for offences under Sections 323, 342 and 324, Penal Code. The learned Magistrate in appeal set aside the convictions and sentences under Section 342. The learned Sessions Judge has referred the case to this Court with a recommendation that the convictions and sentences should be set aside upon the ground that the Bench which delivered judgment consisted of two members one of whom had not been present throughout the trial. He relied on the provisions of Section 350A, Criminal P. C. I may mention that that section does not say in what circumstances a judgment shall be invalid. It says that in certain circumstances it shall be valid. As far as I can see it refers only to a case where the whole constitution of a Bench has been changed during the time when the trial was pending, for instance if a Bench consists of seven members of whom three sit at the time and of the seven members some are changed during the pendency of the trial that will not in itself affect the validity of any order passed by a sitting Bench of three Magistrates. In so far as the section is concerned, it makes a provision that its terms will apply if the members of the particular Bench have been constant throughout. It does not seem to me, however, that this section is intended to affect the other sections of the Code. There is for instance Section 350 which the Magistrates in their explanation have mentioned.
2. The provisions of Section 350A do not say that the provisions of Section 350 shall not apply to a Bench of Magistrates. Courts are sometimes inclined to forget that the procedure of Benches of Magistrates is governed in some measure by rules made under Sections 5 and 16, Criminal P. C. Rules recommended by the Government are to be found in para. 814 of the Manual of Government Orders and the assumption is that District Magistrates have adopted the recommendation and have issued rules accordingly unless the contrary can be made to appear. One of the rules recommended by the Government lays down that the provisions of Section 350, Criminal P. C., will apply when the personnel of a Bench is changed during a trial. It does not seem to me that this rule is in any way in contravention of the provisions of the Code. I have been referred to a number of cases but in none of those cases did the question of Section 350, Criminal P. C., arise. Presumably, no opportunity was given to the accused in those oases to get the evidence recorded again if they wished to do so. In the case before me the learned Magistrates specifically asked the accused whether they wished to have a de novo trial and they stated through counsel that they did not so wish. In my judgment there was nothing irregular in the proceedings. The recommendation is rejected. The papers may be returned to the Court below.