Mohamad Bhat vs State

Jaswant Singh, J.—The learned Sessions Judge, Srinagar has convicted Mohammad Bhat accused under Section 304 R.P.C. for causing

the death of Mst. Khatji, the wife of the complainant, as also under Section 323, R.P.C. for assaulting Qadir Bhat, the complainant. Under the first

count, the accused has been sentenced to life imprisonment subject to confirmation by the High Court and under the second count he has been

sentenced to undergo three months rigorous imprisonment. The record has been submitted to us for confirmation of the sentence under Section

374, Criminal P.C. and the accused has also preferred an appeal against the conviction and sentences passed on him.

After hearing the learned counsel for the parties we are of the opinion, that the reference must be rejected and retrial of the accused ordered

because the judgement of the learned Sessions Judge suffers from a legal defect of a very crucial nature.

The trial of the Sessions case which resulted in the conviction of the accused appears to have been commenced by Shri M.K. Tikku on

691966. After hearing and recording most of the evidence, Shri M.K. Tikku was transferred and was succeeded by Shri JalaludDin. Instead of

recalling the prosecution witnesses already examined by his predecessor and reexamining them, Shri JalaludUdin appears to have resumed the trial

from the point it was left by Shri M.K. Tikku and after recording the statement of Ghulam Hassan P.W. and examining the accused as also his

witnesses, he proceeded to deliver the judgement on 2491967. Shri JalaludUdin thus appears to have pronounced the judgement on the evidence

partly recorded by his predecessor and partly recorded by himself. The general rule of law that no judge of a criminal court can act on the

evidence partly heard and recorded by himself and partly heard and recorded by another judge is too well known. The judgement recorded in

such circumstances is incompetent and invalid. 4. The learned Additional Advocate General appearing on behalf of the State, submitted that under

Section 350, Criminal P.C. it was in the discretion of the learned Sessions Judge either to act on the evidence partly recorded by his predecessor

or to hold a de novo trial. This contention is, in our opinion, wholly misconceived. Section 350, Criminal P.C. reads as under :

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 exercised such jurisdiction, the Magistrate so succeeding may act on

the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself ........

A perusal of this provision (which is only an exception to the general rule that a judgement cannot be delivered on the evidence partly recorded by

a judge himself and partly recorded by his predecessor) would make it plain that it is limited in its application to trials by Magistrates. Reference in

this connection may be made to a catena of authorities reported in (1881) ILR 3 Mad 112; (1902) ILR 26 Bom 50; (1913) ILR 35 All 63 and

AIR 1950 Madh Bha 43. Reference in this connection may also be made with advantage to the following observations made by their Lordships of

the Supreme Court in Payare Lal v. State of Punjab, AIR 1962 SC 690 at p. 692 :

There is no controversy that S. 350 of the Code is applicable only to Magistrates and not to a Court of Session......

This Supreme Court authority has been followed in an unreported decision of a division bench of this court given on 2791967 in Criminal First

Appeal No. 13 of 1966, Abli Rather v. State.

It is regrettable that the accused also consented to this procedure and did not object to the trial being commenced from the stage left by Shri

M.K. Tikku. This, however, would not make any difference in the legal position. Reference in this connection may be made to Ramchandra Naik

v. Emperor, AIR 1947 Pat 428.

In the result, we would reject the reference, allow the appeal preferred by the accused to this extent that the conviction and sentences passed on

the accused by Shri JalaludUdin the then Sessions Judge, Srinagar, are set aside and the case sent back to the present Sessions Judge Srinagar for

retrial in accordance with law. The tri al shall be held as expeditiously as possible.