Kundla Bojjireddy and Others vs State of Andhra Pradesh

M.N. Rao, J.—The thirteen appellants were tried by the learned 1st Additional Sessions Judge, East Godavari at Rajahmundry for murdering five women on 28th February, 1991 in Dona lanka village. Originally, prosecution was launched against 14 accused but before the commencement of the trial, one accused-A-7-died. As many as six charges were framed against them u/s 148 and 302 r/w 149, IPC.

The case of the prosecution, in brief, is that all the accused, belonging to Dona lanka village, formed themselves into an unlawful assembly on 28-2-1991 for the purpose of committing the murder of five women - Kundla Subbayamma, Kundla Gangayamma, Kundla Lingamma, Kundla Ademma, and Kundla Bullemma - suspecting that they were practising witch-craft against the villagers which had resulted in the deaths of several persons and contracting of diseases by several others. In pursuance of their unlawful assembly, the accused had murdered the aforesaid five women by beating them with stout sticks and rice pounders.

The learned trial judge believing the case of the prosecution convicted the appellants u/s 148 and 302 r/w 149, IPC and sentenced them to imprisonment for life.

It is not necessary to go into any further details of the case since we are satisfied that the convictions must be quashed, sentences set aside and the case remanded for de-novo trial by reason of a clear procedural irregularity committed in the trial of the case. It is not in dispute that Dona lanka, the place where the incident took place, is a scheduled area.

In the notification issued in G.O.Ms. No. 485, Home (Courts-B) Department, dated 29-3-1974, the Governor of the State of Andhra Pradesh, in exercise of the powers conferred under subpara (1) of paragraph 5 of the Fifth Schedule to the Constitution of India, has excluded the application of the provisions of the Code of Criminal Procedure, 1973 to the scheduled areas in the State of Andhra Pradesh but reserved the power to make provision for their application in future. It is, therefore, clear that in respect of trial of criminal cases in scheduled areas, the provisions of the Criminal Procedure Code, 1898 (for short "the old Code") alone are applicable.

Section 350 of the old Code, which is relevant, reads :

"350 (1). Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such Jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by himself; provided that if the succeeding Magistrate is of opinion that further examination of any of the witnesses whoe evidence has already been recorded is necessary in the interests of justice, he may resummon any such witness and after such further examination, cross-examination and re-examination, if any, as he pay permit, the witness shall be discharged.

(2) Nothing in this section applies to cases in which proceedings have been stayed u/s 346 or in which proceedings have been submitted to a superior Magistrate u/s 349.

(3) When a case is transferred under provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter within the meaning of sub-section (1)."

Section 350 of the old Code is in the nature of an exception to the fundamental principle of criminal law that he who hears alone must decide. The exception is engrafted only in respect of trials conducted by Magistrates. With regard to cases tried by Sessions Judges, the old Code does not engraft any exception to this basic principle of criminal law.

In Payare Lal Vs. State of Punjab, , the question arose whether breach of the provisions of Section 350 of the old Code by a Special Judge appointed to try offences under Prevention of Corruption Act was only a curable irregularity or an illegality going to the root of the matter. The Supreme Court ruled : (at P. 690 of Cri LJ.

"It is true that S : 350 of the Code is a provision applying to all magistrates and, therefore, also to a magistrate trying a warrant case. That however does not in our opinion decide the question. We think it relevant to observe that it is a right of an accused person that his case should be decided by a judge who has heard the whole of it and we agree with the view expressed in In Re: T.A. Fernandez, that very clear words would be necessary to take away such an important and well established right. We find no such clear words here."

Citing the decision of the Privy Council in Pulukuri Kotayya v. Emperor AIR 1947 PC 67, in which it was held that when a trial is conducted in a manner different from that prescribed by the Code, the trial is bad, 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, the Supreme Court expressed the view : (at P. 691 of Cri LJ.

"It seems to us that the case falls within the first category mentioned by the Privy Council. This is not a case of irregularity but want of competency. Apart from S. 350 which, as we, have said, is not applicable to the present case, the Code does not conceive of such a trial. The trial offends the cardinal principle of law earlier stated, the acceptance of which by the Code is clearly manifest from the fact that the Code embodies an exception to that principle in S. 350. Therefore, we think that S. 537 of the Code has no application. It cannot be called in aid to make what was incompetent, competent. There has been no proper trial of the case and there should be one."

In the case on hand, the trial was conducted by three learned judges. Charges were framed by Sri D. Subrahmanyam, 1st Addl. Sessions Judge and the first witness for the prosecution was examined on 12-10-1992. After the transfer of Sri D. Subrahmanyan, another officer - Sri A. V. Koteswara Rao - assumed charge and he examined PW-15 on 10-2-1993. The rest of the witnesses also were examined by Sri Koteswara Rao. However, arguments were heard and the judgment was delivered by Sri Uttam Reddy, 1st Additional District & Sessions Judge on 9-7-1993. It is, therefore, clear that the trial is clearly vitated on the authority of the aforesaid decision of the Supreme Court (Payare Lal''s case (1962 (1) Cri LJ 688) (supra), This legal position could not be seriously disputed by the learned Public Prosecutor.

For the aforesaid reasons, the criminal appeal is allowed; the convictions recorded and sentences awarded against all the appellants are quashed. The case is remitted to the II Additional Sessions Judge, East Godavari at Rajahmundry - Sri Raghavender Rao (who has been recently posted) - who shall take it on file, frame charges afresh, examine, the witnesses, complete the trial and deliver judgment. Until the trial in this case is completed, the officer shall not be transferred. It is open to the appellants-accused to move the learned II Additional Sessions Judge for bail by filing an application and the same, if filed, shall be considered by the learned judge in accordance with law.

Appeal allowed.