Ramchandra Naik and Another vs Emperor

Das, J.—The learned Additional Sessions Judge of Koraput-Jeypore has referred the case of Ramchandra Naik and Lakshmidhar Naik, who are two brothers, for confirmation of the sentence of death passed on them for having committed the offence of murdering their own step brother Kamulu Bhumia on 19-12.1945 at about 10 A.M. There is also an appeal on behalf of the two convicted persons which has been heard together with the reference u/s 374, Criminal P.C. In view of the order of re-trial which we are proposing to pass in this case, it is unnecessary to set out the facts in detail or to express any opinion on merits.

I need only set out such facts as are germane to the question of re-trial. The two accused persons Ramchandra Naik and Lakshmidhar Naik were committed to the Court of Session by Mr. K. Satapathi, Stationary Magistrate at Jeypore. They were committed on a charge u/s 302 read with Section 34, Penal Code. The case originally came to the file of the Agency Sessions Judge who, by his order dated 10 4-1946, transferred the case to the Additional Sessions Judge, Jeypore. By an order, dated 3-6-1946 Mr. B.C. Das, the then Additional Sessions Judge of Jeypore, dispensed with the aid of assessors for the trial of the case. This the Additional Sessions Judge was empowered to do u/s 268, Criminal P.C. as amended and applied to the Agency area. Learned Counsel for the Crown has given us a copy of the notification by which the Criminal Procedure Code has been applied to the Agency area in question with certain modifications. One of the modifications is in respect of Section 268, Criminal P.C. Section 268, Criminal P.C., as modified by the said notification reads as follows:

All trials before a Court of Session shall be by jury or with the aid of assessors or without a jury and without the aid of assessors as the Court may decide. The Court shall, at the commencement of every trial, state by an order in writing the method of trial which it proposes to adopt.

The learned Additional Sessions Judge was, therefore, competent to pass an order dispensing with the aid of assessors, the only requirement being that he shall state at the commencement of the trial by an order in writing the method of trial which he proposes to adopt. This the learned Additional Sessions Judge bad done by his order dated 3-61946. I have referred to this matter, because Mr. Girish Nandan Sahay who appeared as a micus curia, drew our attention to it and contended that the trial in this case had been held in contravention of the provisions of Section 268, Criminal P.C. Learned Counsel was apparently thinking of Section 268 as it occurs in the Criminal Procedure Code and not the section as modified and applied to the Agency area. The trial began on 3-6-1946 before Mr. B.C. Das, and he examined witnesses on that date and on several successive dates till 18-6-1946. On that date the Public Prosecutor put in a petition stating that the investigating police officer was absent. The pleader for the defence, who appears to be a Sanad holder, put in a petition saying that it was necessary to examine the investigating police officer. Mr. B.C. Das then postponed the hearing till 26-7-1946. It is not very clear from the record why such a long adjournment was considered necessary in a case where the accused persons were indicted on a capital charge. On 26-7-1946, Mr. J.N. Mohanty was the Additional Sessions Judge. Presumably Mr. B.C. Das had been transferred and had made over charge as Additional Sessions Judge without finishing the case. Mr. J.N. Mohanty enquired of the accused persons if they wanted a de novo trial. Their pleader did not press for a de novo trial, and Mr. J.N. Mohanty examined only the investigating police officer and recorded the statements of the accused persons. He heard arguments on 26-7-1946, and on 8-8-1946, he passed orders convicting the accused persons and sentencing them as stated above. It would thus appear that Mr. J.N. Mohanty did not hear or record any part of the evidence in the case except the evidence of the investigating police officer. The question has, therefore, arisen if, in the circumstances mentioned above, Mr. J.N. Mohanty was competent to pronounce judgment convicting and sentencing the accused persons, when most of the evidence in the case had been heard by another Sessions Judge. In my opinion, the answer to the question must be in the negative. Chapter 23, Criminal P.C., deals with trials before High Courts and Courts of Session. There is no provision in that Chapter which empowers a Sessions Judge to pronounce judgment on evidence recorded by another Judge. It is a general principle that judgment must be delivered by the Judge who has heard the evidence. There is an exception to this general rule provided by Section 350, Criminal P.C. This section is very clear it its terms and applies in a case where any Magistrate, after having heard and recorded the whole or any part of the evidence in an enquiry or trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction. The section says that in such a case the Magistrate so succeeding may act on the evidence recorded by his predecessor or partly by his predecessor and partly by himself; or he may re-summon the witnesses and recommence the enquiry or trial. There are certain provisos to the section which need not be set out in detail. It is important, however, to note that one of the provisos says that the High Court, or in cases tried by Magistrates subordinate to the District Magistrate, the District Magistrate may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the Magistrate before whom the conviction was held, if the High Court or District Magistrate is of opinion that the accused has been materially prejudiced thereby, and may order a new enquiry or trial. The substantive part of the section refers only to cases where one Magistrate is succeeded by another." It does not refer to cases tried by Sessions Judges. The reference to the High Court in proviso (b) does not, in any way, enlarge the scope of the substantive part of the section: it merely gives the High Court power to interfere in cases where a conviction is based on the evidence not wholly recorded by the Magistrate before whom the conviction was held. The same power is also given to the District Magistrate in cases tried by Magistrate subordinate to the District Magistrate. There are a series of decisions of different High Courts which have held that Section 350 applies only to Magistrates and not to Sessions Judges, and a Sessions Judge is not competent to pronounce judgment on evidence recorded by his predecessor, or on evidence partly recorded by his predecessor and partly by himself: The Queen v. Gopi Noshyo 21 W.R. 47; The Queen v. Rugoonath Dass 23 W.R. 59; Tarada Baladu v. The Queen (81) 3 Mad. 112; King-Emperor v. Sakharam Pandurang 26 Bom. 50; Durga Charan Sanyal v. Emperor (08) 8 Cri.L.J. 59, Emperor v. Badri Prasad (13) 35 All. 63 and Emperor Vs. Dorabji Pestonji Gora, . The case in Emperor Vs. Dorabji Pestonji Gora, related to a case tried in the High Court and was decided on different grounds, though it was observed there that:

A Sessions Judge cannot act on evidence recorded by his predecessor and on a change of Judge the Sessions trial must commence de novo, for Section 350 does not apply to a case of that kind.

We asked learned Counsel for the Crown whether there was any special law or rule in force in the Agency area which would enable the Sessions Judge to act on evidence recorded by his predecessor. Learned Counsel took time for the purpose, and was unable to place any such special law or rule. He has given us a copy of the notification which applies the Criminal Procedure Code to the Agency area in question subject to certain modifications mentioned in a schedule. These modifications do not show that Section 350, Criminal P.C., has been modified for the Agency area.

The question has also been raised before us if the consent of the accused persons or the absence of a provision, similar to Section 350, in the Chapter of the Code dealing with trials in the High Court and the Court of Session makes any difference. In my opinion, it makes no difference in the legal position whether the accused persons consent or not. Such consent will not give the Sessions Judge jurisdiction to pronounce judgment on evidence recorded by another Judge. In The Queen v. Rugoonath Dass 23 W.R. 59 the same point was raised, and it was held that notwithstanding the prisoner''s consent, the conviction and sentence passed by the Sessions Judge before whom the evidence was not taken was bad and illegal and must be set aside. The absence of a provision similar to Section 350 in the Chapter dealing with Sessions trials cannot make any difference; on the contrary, it shows that the framers of the Code did not intend that the Sessions Judge, who ordinarily deals with graver offences than are dealt with by a Magistrate, should pronounce judgment on evidence not recorded by himself. Moreover, the express terms of Section 350 exclude its application to Sessions trials. The use of such express terms leaves no room for doubt in the matter. It is unfortunate that the pleader for the accused persons consented to a trial which has resulted in a deplorable waste of time. It is also unfortunate that the decisions referred to above, which have put the matter at rest, were not brought to the notice of the learned Additional Sessions Judge.

For the reasons given above, I must hold that Mr. Mohanty was not competent to pronounce judgment on evidence recorded by his predecessor. There was only one eye-witness in the case, and the deposition of the witness shows that his demeanour and the demonstration which he gave of how the occurrence had taken place were important points for the consideration of the Judge who had to pronounce judgment in the case. Apart from the question of legality, there is great prejudice to the accused persons in a case of this nature where almost the entire evidence is recorded by one Judge and judgment is pronounced by another, particularly when we remember that the case rests on the testimony of a solitary witness whom the Judge pronouncing judgment had not seen or heard.

The conviction and sentence passed by the learned Additional Sessions Judge must, therefore, be set aside. Mr. Sahay, who has assisted us on behalf of the appellants and to whom we are indebted for the assistance rendered, has taken us through the entire evidence in the record and has contended that there should be no order for retrial in this case. The question of a retrial in similar circumstances was considered in Durga Charan Sanyal v. Emperor 8 Cri.L.J. 59. There was a difference of opinion between Giedt and Woodroffe JJ. on the point. Giedt J. had put the matter in the following way:

In my opinion, the rule should be that in all serious cases where the first trial, owing to defect of jurisdiction or similar cause, is rendered abortive a new trial should be ordered, unless it is quite clear, on the materials before the Court that there is no chance of conviction.

On a difference of opinion between the two Judges, the matter was referred to the Chief Justice who accepted the view that there ought to be a retrial unless it is reasonably Clear that there is very little chance of a conviction. Having heard Mr. Girish Nandan Sahay I am of the view that there must be a retrial in this case. It is not desirable that I should express any opinion on the evidence in the case at this stage. [7] In the result, I would reject the reference and allow the appeal to the extent indicated below. The conviction and sentence passed by the learned Additional Sessions Judge must be set aside, and the case against the two accused persons must go back for a fresh trial in accordance with law. This new trial should be held as expeditiously as possible by a Judge other than Mr. J.N. Mohanty, who has already expressed his opinion in the case. The trial should be held by the learned Agency Sessions Judge himself or by some other Judge of competent jurisdiction who may be available and to whom the case may be transferred by the learned Agency Sessions Judge.

Dalziel, J.

I agree.