LexPAYARE LAL versus STATE OF PUNJAB
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196/ Auguat 30. 328· SUPREME COURT REPORTS [ 1962 ~ . (13. PAY.ARE LAL v. STATE OF PUN.JAB P. St~HA, c. J., A. K. SARKAR ,J. H. )fGDliOI.K.·\H. J,J.) and Criminal Trial-Tran.9frr of 8pl'cial Judge-Sucasaor, if mn trv on ~vidF1!1'1'. J#lrtly m:ol'ded by him and partly by preduessor- Special.Judye, ~fa mrrgistmle-Want of competency, if can J,~ cuwl-C'n'minal Law Amendment Act, 1952 ( .J() of 19J2). s . . ~, Stlb-s.~. ( 1), ( 3) Code of Criminal Prorulure, 189S (V of J8!J8), ss. :!57 to 25.f'J, 3.~o. :is;·. The appellant and another were prosecuted for offences under s. 5(2) of the Pre\'rntion of Corruption Act, 1947. The trial commenced befor~ the special Judge who heard the evide- nce b11t hcfore he c:ou!d deliver judgment was transferred anti was succeeded by another special Judge. The latter Jid not recall the witnessrs and did not hear the eddenee over again, hllt proceeded with the trial without any objection from ~it her side from the st:~.ge at which his predccess->r had left. He com·icted both the Clcc.used. On appeal, the Punjab High Court held that s. 350 Criminal Procedure C•)cle 3.pplied to the trial before a special Judge in \'iew of s. B( I) of the Criminal Law Amendm~nt Act, 1952, and the succeeding special Judge ,\·as entitled to proceed on the evidence recorded by his predecessor. The controversy is whether s. :no of the Code of Crimi- nal Procedure is applic.abl e to a special Judge under sub-s. (I) of s. 8 of the Criminal Law Amendment Act, 1952, though it is not app licablc under sub-s. (3) of the Act. Therefore the que~tio11 is what is meaut by the words "The proced ur~ pre· scribed bv the comt ...... for the trial or \\·arrant cases hv magistrate'' in ~ub-s.(l) ofs. ll of the Act, and \\'hether s. 3:>() of the Code prcsc:ribe one of the rules of ,;uch procedure. The Art was sinre amended aml therein it is expressly pro\·ided that s.350 of the Code applies tcJ the proceedings before a special Judge. The ;J.tnendment does not gov~rn the pre~ent proceeding as the impugned part of the proceedings was condudrd before the amendnent. Hrld, that th~ Criminal Law Amendment Act, 1952, did not intend that .~. 350 of th~ Criminal Procedure Code would he available as a r\lle of procedure prescribed for the trials of warrant cases. to a ~pecial Judge as the special Ju?ge was not a magistrate for the purpose of the Act not dtd the Act require before the amendment that he was to be deemecl to bf" such. ~.- ' . ....,.-· -· 3 s.c.R. SUPREME COURT REPORTS 3Z9 The Act in usin~ the words "procedure prescribed by the Code . ..... for the tr1al of warrant cases bv magistrat ,, only the ss. 251 to. 259 of the Criminal ·Procedure ~o:kea~! expressly referred m the code as containing the d . d " h · 1 f proce ure spcifie 1or t e tria s o war:-ant cases by magistrate and did not contemplates. 350 of the Code as a procedure 50 prescribed. . . . Hflrl, futher, tha~ where i.n a ca~e there is •vant of com e· tency and not a mere trre~ula!'lty, ~. 537 of the Code of Cri~i nal Procedure has ~o apphcatton. It cannot be called in aid to make what wa~ mcompetent, competent. H~ld, also, that 1t is the right of an accmed penon that his case should be · decided by a Judge who has heard the whole of it and tha~ very clear words would be necessary to take away such an Important and well established right. In the present case the succeeding s~cial Judge had M i\Uthority under the law to proceed with the trial of the caae from the stage at which his predece,sor in office left it, and the conviction of the appellant r.annot be supported as he had not heard the evidence in the case himself. The proceeding before the succeed i n~ spechl Judge Wf're clearly incompetent. There has been no proper trial of the case and there should be one. In ,.J:oUyrrnatba fy,r, (1954) l M. L.J. 15, Mt Appli- cable. Pwlttl:uri Kofayyfl v. KiWJ En~ptror,· (1947) L. R. U I.A. 6:i and Kim/,ra;; v. Draper, (1868) 3 Q . B. 160, referred te. In r;-Frrtlllndfz. (1958) II M. L. J. 294, approved. CamrSAI. APPf:LLATE .fURISDICTIO:X: Criminal Apr~eal Xo. :?40 ofl960. Appeal hy special leave from the judgm~nt and ordt-r elated Noveml>t~r !!5, 1938, of the PunJab High C'..ourt in Criminal Appeal No. 114 of 1954 . . h,i Oop~Ll Rethi, 0. L. Sm·ef'n and R. L. KohU, for the appellant. N. S. Rindra, R. J/. Dhebnr and D. G1Epf-<t, for re11pondcnt. l<)Ol. Augullt 30. The Jud~ement o£
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