Baharul Islam, Actg. C.J.
1. The petitioner was being tried for an offence under Section 302 of the Penal Code. The trial was being held by the Additional Deputy Commissioner, East Khasi Hills, Shillong exercising the powers of the Sessions Judge. The case has a protracted career. Evidence was recorded by five successive Additional Deputy Commissioners before, each in part. Ultimately it came up for hearing argument on 29-6-1978 before Shri P.J. Bazeley, Additional Deputy Commissioner of the aforesaid district. The learned Additional Deputy Commissioner (Shri Bazeley) observed:.Evidence has been completed and recorded by a large number of successive presiding officers of this Court. As such it would not be proper for the Court to appreciate the evidence at this stage. Let there be a de novo trial.
Fix 1-8-1978 for evidence and summon all non-official P. Ws. on that date and all official P. Ws. on 3-8-1978...
This order has been challenged by this application under Sections 435/439 of the Code of Criminal Procedure, 1898 (hereinafter 'the old Code'), read with Rule 17 of the Rules for the Administration of Justice/ Police in the Autonomous Districts of Assam.
2. The case came up before the Hon'ble Chief Justice (C.M. Lodha) for hearing on 14-12-1978. His Lordship observed in the order of that date:
The important point of law involved in this case is: Whether a Deputy Commissioner trying a Sessions Case in the tribal areas of Meghalaya can act upon the evidence recorded by his predecessor even though he is guided only by the spirit of the Code of Criminal Procedure and not by its provisions as such.
The question is of considerable importance and is likely to affect a number of pending cases and the cases that may, hereafter, come up before the Deputy Commissioners in tribal areas of Meghalaya and, therefore, it is necessary that there should be an authoritative decision on the point.
And so he referred the case to a larger Bench. This is how the case comes up for hearing by this Full Bench of three Judges.
3. The only question that falls for decision by this Full Bench is whether the Additional Deputy Commissioner or the Deputy Commissioner, who tries a Sessions case in the tribal areas of Meghalaya can act on the evidence recorded by his predecessor or predecessors or he has to try the case de novo, as was ordered by the learned Additional Deputy Commissioner in this case.
Shri S.C. Das, learned Counsel appearing for the petitioner, submits that the learned Additional Deputy Commissioner had no jurisdiction to try the case de novo; he ought to have decided the case on the evidence already recorded by his predecessors.
4. In the case of the State of Meghalaya v. Whitley Sangma Govt. Criminal Appeal No. 10 of 1972 : 1977 Cri LJ (NOC) 122 (Gauhati), precisely a similar point fell for consideration by a Division Bench of this Court and one of us (Islam, J.) was a party to that decision. It does not appear from the order of the learned Chief Justice referred to above that this decision was placed before him. In that case (Govt. Criminal Appeal No. 10 of 1972) a charge was framed against the accused under Section 302 of the Penal Code. The charge was framed on 13-8-70 by Shri R.P. Sinha, Additional Deputy Commissioner, Garo Hills district, who recorded the evidence in part.
He was succeeded by Shri J.P. Singh, Additional Deputy Commissioner, who recorded the rest of the evidence in the case. He was succeeded by the Additional Deputy Commissioner, Shri P.K. Dutta, who, on the basis of the evidence already recorded by his predecessors, passed the judgment and acquitted the accused.
5. The question that arose in that case was whether Shri Dutta had jurisdiction to act on the evidence recorded by his predecessors. The Division Bench referred to the case of Ajit Deka v. State of Assam reported in 1973 Assam LR 31, in which case an earlier Division Bench considered the provisions of Chapter XXIII of the old Code and held:
On consideration of the procedure laid down for commitment of an accused to Court of Session and the procedure for trial of sessions cases by the Judge himself, we are of opinion that when a Sessions case is ready for trial as contemplated under Section 271, the trial should continue from day to day till the trial is concluded as provided under Section 309. From this it necessarily follows that the Judge who records the evidence in a sessions case is required to conclude the case and pass his judgment as laid down under Section 309. It is neither contemplated by the procedure laid down in this regard, nor will it meet the ends of justice if one Judge records the evidence wholly or partly and another Judge succeeding him proceeds with the sessions trial from the stage left by the predecessor and records further evidence and passes judgment on the evidence recorded by his predecessor and himself.
In that case it had been held that the Sessions Judge could not act on the evidence already recorded, but had to record the evidence himself de novo and pass judgment. The general principle of law is that a judge or a magistrate can decide a case on the evidence taken by him. See AIR 1962 SC 690.
6. It may be mentioned that Ajit Deka's case (supra) came from an area to which the Criminal Procedure Code applies in letter, whereas admittedly the spirit only of the Code applies to the State of Meghalaya from where the case in hand comes. The case of State of Meghalaya v. Whitley Sangma (supra) also came from Meghalaya. In the latter case, the Court also considered Sections 226 to 245 in Chapter XVIII of the Code of Criminal Procedure, 1973 (hereinafter 'the new Code'). On a consideration of the above provisions of the law, the Division Bench held:
On a perusal of the above provisions of the law, it becomes clear that the Judge is to try the case from day to day, record the evidence and thereafter, after hearing the argument, deliver the judgment on the evidence recorded by him. It is not contemplated by the new Code either, that a Judge delivers judgment in a Sessions case on the evidence recorded wholly or in part by his predecessor or predecessors. The reason is that Judge who records the evidence sees the witnesses and is, as such, in a better position to evaluate their evidence. The Judge delivering judgment on the evidence recorded by the predecessor does the job of an appellate court. The law in this regard under the old Code and the new Code is, in our opinion, the same.
The Division Bench has also considered the question that the spirit only of the Code applies to the districts in Meghalaya and held:
Although the procedure for the trial of a Sessions case occurs in the Criminal Procedure Code the provision of trial of a case before a Court of Session is not a mere formality or a mere matter of procedure. It is a matter of substance and relates to the jurisdiction of the Judge who delivers the judgment. In our opinion, therefore, the above rule applies also to the areas to which the spirit only of the Code of Criminal Procedure has been made applicable.
It is, therefore, clear that the judgment in Govt. Criminal Appeal No. 10 of 1972 (Gau) answers the point raised before us, although the decision, being a Division Bench of two Judges, is not binding on this Full Bench. We however find no good reason to differ from it.
7. Learned counsel for the petitioner, however, has urged, and in our opinion rightly, that Section 350 of the old Code, (which is admittedly applicable to the present case) was not placed before the Beach and was not considered. The submission of teamed counsel is that Section 350 of the old Code (equivalent to Section 326 of the new Code) is applicable to the trial of a sessions triable case by a Deputy Commissioner or an Additional Deputy Commissioner, and, as such it was the duty of the learned Additional Deputy Commissioner to act on the evidence already recorded by his predecessors.
Sub-section (1) of Section 350 of the old Code which is relevant, is in the following terms:
(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 his predecessor and partly, recorded by himself:
Provided that if the succeeding Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness and after such further examination, cross-examination and re-examination if any, as he may permit, the witness shall be discharged.
8. Evidently the Section enables a Magistrate to act on the evidence recorded by his predecessor. The question is : can a Deputy Commissioner or Additional Deputy Commissioner who tries a Sessions case be equated to a Magistrate?
Learned Counsel for the petitioner submits that the Deputy Commissioner or the Additional Deputy Commissioner in Meghalaya is one of the Magistrates and, as such, although he tries a sessions case, he is merely a First Class Magistrate and has to act on the evidence already recorded by his predecessor under Section 350 of the old Code.
9. The Khasi Siemships (Administration of Justice) Order, 1950 (hereinafter 'the Order') provides, inter alia, for administration of criminal justice. Para 2 of the said order read with Rule 16 of the Rules for the Administration of Justice/Police in the Khasi and Jaintia Hills (hereinafter 'the Rules') provides that criminal justice shall be administered by the Deputy Commissioner or Additional Deputy Commissioner and his assistants, and the Courts of the Siems. Para 3 of the Order provides that the Indian penal Code as for the time being in force in other areas of the State of Assam shall apply to the Khasi Siemships as it applies to the other areas of the State. Para 4 of the Order read with Rule 17 of the Rules provides that the Deputy Commissioner or the Additional Deputy Commissioner may pass any sentence authorised under the Indian Penal Code or any other law for the time being in force in the Khasi Siemships; provided that any sentence of death or transportation for life or imprisonment for seven years and upwards shall be subject to confirmation by the High Court. But sub-para (2) of Para 4 of the Order provides that the Courts of the Assistant to the Deputy Commissioner and of the Siems shall exercise such powers, not exceeding those of a Magistrate of the First Class as defined in the Code of Criminal procedure.
10. A perusal of Paras 2, 3 and 4 of the Order and Rules 16 and 17 of the Rules shows that officers administering criminal justice have been divided in two categories: (i) the Deputy Commissioner or the Additional Deputy Commissioner who can pass any sentence authorised by the Penal Code or any other law for the time being in force in the Khasi Siemships, and (ii) the Courts of Assistants to the Deputy Commissioner and of the Siems can pass a sentence which can be passed by a Magistrate of the First Class only. This shows that the Deputy Commissioner and the Additional Deputy Commissioner have been put in a category above the courts of the Assistants to the Deputy Commissioner and of the Siems; and it is the Deputy Commissioner or the Additional Deputy Commissioner who can, and in fact does, try sessions triable cases in the districts in the State of Meghalaya and not by any and every First Class Magistrate. This being the case, in our opinion, the Deputy Commissioner or the Additional Deputy Commissioner can be equated to a Sessions Judge and cannot be equated to a Magistrate, as contended by the learned Counsel for the petitioner.
10-A. Rule 1-A of the Rules empowers the Governor to appoint an Additional Deputy Commissioner, either generally, or for the trial of a particular case, or particular cases, civil or criminal, and may direct that such Additional Deputy Commissioner shall, for the general or special purpose aforesaid, exercise all or any of the powers of the Deputy Commissioner. In other words, under Rule 1A an Additional Deputy Commissioner has the same powers as the Deputy Commissioner in trying a sessions triable case-It is also the admitted position that the Additional Deputy Commissioner has the power to try a sessions triable case.
10-B. That the Deputy Commissioner can be equated to a Sessions Judge gets Support from section of the Press (Objectionable Matter) (Extension to Assam Autonomous Districts) Act, 1953, according to which reference to 'the Sessions Judge' is to be construed as referring to 'the Deputy Commissioner of the District' where there is no Sessions Judge. As such, in our opinion Section 350 cannot be resorted to by a Deputy Commissioner or an Additional Deputy Commissioner in trying a sessions triable case.
11. Another argument advanced by the learned Counsel for the petitioner is that a de noyo trial of a sessions case in which evidence has already been recorded by a succeeding Judge would cause harassment to the accused. This point was considered by the Law Commission of India and recommended in its report as follows:
Section is confined to cases in the Magistrate's courts, and is inapplicable to the Courts of Session. We have considered the advisability of extending this rule to sessions cases, as we understand that sometimes Sessions Judges are transferred, leaving behind part-heard cases which have to be heard all over again. It would be an ideal position if such; transfers did not take place, as Sessions cases are to be heard from day to day and decided within a few days. It is obviously desirable that in serious cases the whole evidence should be heard by the judge who finally decides the case. However, having regard to the realities of the situation, it is necessary to make seme provision for cases where such transfers do take place, because a mandatory provision for a de novo trial may often cause considerable inconvenience and hardship. We, therefore, propose to extend the section to Judges of Sessions Court by referring to 'Judge or Magistrate' instead of 'Magistrate' only.
But the Parliament in its wisdom thought it fit not to accept the recommendation and extend Section 350 to sessions trial, as Section 326 of the new Code, which is in pari materia, shows. The reason, perhaps, is that if a Judge disposes of a sessions triable case which necessarily involves heinous offences, there is greater likelihood of failure of justice which would outweigh the harassment under gone by the accused, than if the case is tried on fresh evidence.
12. Their Lordships of the Supreme Court in Payare Lal's case AIR 1962 SC 690 (supra) have held:
There is no controversy that the general principle of law is that a judge or magistrate can decide a case only an evidence taken by him. Section 350 of the Code is a statutory departure from this principle.
It is true that Section 350 of the Code is a provision applying to all magistrates and, therefore, also to a Magistrate trying a warrant case.... 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 Fernandez's case 1958-2 Mad LJ 294 : AIR 1958 Mad 571 (FB) that very clear words would be necessary to take away such an important and well established right. We find no such clear words here.
In other words an accused has the right to claim de novo trial of a case heard in part; but he does not have a right to claim trial on the basis of the evidence already recorded by some other Judge, which is not the 'general principle of law,' nor can his consent give jurisdiction to the Deputy Commissioner or the Additional Deputy Commissioner to act on the evidence recorded by his predecessor or predecessors.
13. As a result of the foregoing conclusions we hold that in the trial of a Sessions case, the Deputy Commissioner or the Additional Deputy Commissioner cannot act on the evidence already recorded by his predecessor or predecessors.
14. In the result this application fails and is rejected. The Rule is discharged.
15-16. Before we part with the records we may observe that the harassment or inconvenience faced by the accused as complained of by the petitioner, can be avoided in most cases if a case is heard from day to day and completed before the Sessions Judge or the Deputy Commissioner or the Additional Deputy Commissioner, as the case may be, leaves the station on transfer.
D. Pathak, J.
B.L. Hansaria, J.
17. I had the advantage of reading the judgment prepared by My Lord, the Chief Justice (Acting). With great respect, I beg to differ and state as below.
18. The petitioner is facing a trial in the Court of learned Additional Deputy Commr. Shillong under Section 302 I.P.C. The charge-sheet in the case was submitted on 29-1-1971; and charge under Section 302 I.P.C. was framed on 1-5-1971.
Thereafter 16 P. Ws. were examined and the statement of the accused-petitioner was recorded on 26-5-1977 and 1-7-1977. The case was then fixed for argument on 29-6-1978; on which date the learned Additional Deputy Commissioner passed the following order:
Accused Saul present. Addl. P.P. absent. Defence counsel present. Inform P.P. Today is fixed for arguments, perused record. Evidence has been completed and recorded by a large number of successive Presiding Officers of this Court. As such it would not be proper for the Court to appreciate the evidence at this stage. Let there be a de novo trial.
Fix 1-8-1978 for evidence and summon all non-official P. Ws. on that date and all official P. Ws. on 3-8-1978.
Accused as before P. P. to take steps.
Sd/-F. J. Bazeley
19. The petitioner, feeling highly aggrieved at the order of de novo trial, has approached this Court, his submission being that the learned Additional Deputy Commissioner could have and should have proceeded on the evidence which is already on record. According to him, the spirit of Section 350 of the old Criminal Procedure Code (whose parallel provision in the new Cr. P.C. being Section 326) applies, which has given a discretion to a Magistrate to act on the evidence recorded by his predecessor. When the matter came up before the Hon'ble Chief Justice (Shri C. M. Lodha) sitting singly, his Lordship felt that in view of the importance of the matter, it should be decided by a larger Bench. This Special Bench has therefore been constituted to decide whether spirit of Section 350 of the Code (or Section 326 of the new Code) can be invoked by a Deputy Commissioner/Additional Deputy Commissioner while trying a case. Learned Counsel of both the sides addressed us at length on this question which has a bearing not only on the trial which the petitioner is facing but may affect large number of cases. I have therefore considered the matter with the seriousness it deserves.
20. It is a known position that administration of justice in the Khasi Hills, wherefrom the case comes, is governed by two sets of Rules, namely, 'Rules for the Administration of Justice and Police in the Khasi and Jaintia Hills' (the Rules, hereinafter) and the 'Khasi Siemships (Administration of Justice) Order, 1950' (the Order, for short). For the present case, the provisions of the Order alone may be noted, first, because according to the petitioner his case is governed by the provisions in the Order, and secondly, because there is practically no difference in the relevant provisions as contained in the Rules and the Order. Para 2 of the Order needs to be noted first. It states:
2. Criminal Justice shall be administered by:
(1) The Deputy Commissioner or Additional Deputy Commissioner, United Khasi-Jaintia Hills District and his assistants.
(2) The courts of the Siems.
Para 3 is not relevant for our purpose. Para 4 has, however, to be read:
4(1) The Deputy Commissioner or the Additional Deputy Commissioner may pass any sentence authorised under the Indian Penal Code or any other law for the time being in force in the Khasi Siemships but any sentence of death or transportation shall be subject to confirmation by the High Court of Assam.
(2) The Courts of the Assistants to the Deputy Commissioner and of the Siems shall exercise such powers, not exceeding those of a Magistrate of the First Class as defined in the Code of Criminal Procedure, 1898 as they may be invested by the Governor of Assam.
The next provision which need be noted is that of Para 14, which states:
14. The procedure of the High Court of Assam, the Deputy Commissioner or the Additional Deputy Commissioner and his Assistants shall be in the spirit of the Code of Criminal Procedure, 1898, as far as it is applicable to the circumstances in the Siemships.
I also quote Sub-section (1) of Section 350, which alone is relevant:
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 his predecessor and partly recorded by himself:
Provided that if the succeeding Magistrate is of opinion that further examination of any of the witnesses whose 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 may permit, the witness shall be discharged.
21-22. It may be stated that these paras have their parallel in Rules 16, 17 and 23 of the Rules. We are called upon to decide on the basis of the above provisions as to whether a Deputy Commissioner or Additional Deputy Commissioner, if he so desires, can act on the evidence which is already on record. To answer this problem, it is first to be seen whether the provision of Section 350 can be called a part of the spirit of the Cr. P.C. because, unless it is so, the provision cannot be held applicable in the area in question. According to Shri A. Sarma, learned Government Advocate for the State of Meghalaya, the provision is not a part of the procedure of the Code at all, and so, even if it be a part of the spirit of the Code, cannot be made applicable because Para 14 permits spirit of the procedure alone to be applied.
In contending that it is not a part of the procedure, reference was made to Payare Lal : (1962)ILLJ637SC . In that case, the Supreme Court was called upon to decide whether a Special Judge acting under the provisions of the Criminal Law Amendment Act, 1952, could base his decision on the evidence which had been recorded by his predecessor. While dealing with this question, it was stated by the Supreme Court in para 11 that it was a right of an accused person that his case should be decided by a judge who has heard the whole of it. Any departure from this rule was regarded not a mere irregularity but a want of competency in Para 15. The principle that Judge who hears must decide was regarded as a cardinal principle of law and it was stated that the defect in acting otherwise would be one of jurisdiction and could not be cured by the consent of the parties (Para 3). Relying on this, Shri Sarma submitted that the right to get his decision from the judge who has heard the whole matter is a substantive right and such a substantive right cannot be brought as if through the backdoor by invoking the spirit of the Code. That this cannot be done was the view taken in Assam LR (1970) Assam & Naga 275, where the Court held that the right of appeal being a substantive right and creature of a statute could not be introduced by invoking the spirit of the Code of Criminal Procedure.
23. According to me, it is one thing to say that the right of the accused to get his case decided by one who has heard the whole of it is a substantive right, departure from which is not permissible unless sanctioned by the statute, and another to contend that even if the departure be permissible, the power given to the authority is not a part of the procedure to be adopted by him in deciding the case. To me it seems that provision contained in Section 350 is a part of procedure, par excellence, as it says from which stage a case has to be tried and whether evidence recorded by a predecessor can be used by a successor. It also deals with resummoning of witnesses already examined. These steps are part of procedural law to be followed during a trial.
That Section 350 deals with procedure of trial would appear from a reading of Paras 12 and 13 of Payarelal also. Had it been otherwise, the Supreme Court would have rejected the contention of the State on this short ground. This apart, it is well known that procedural laws also may confer substantive right. So, the case of the petitioner cannot be thrown out at the threshold. If I were really to agree with Mr. Sarma on this point, the spirit of Section 350 could not be invoked even by an Assistant to Deputy Commissioner while trying petty offences. I am not prepared to concede this on any reasoning advanced. Even Mr. Sharma was found not very emphatic on this point, as he had submitted that the spirit of Section 350 may apply to trial before Assistant to Deputy Commissioner, but would not apply to trial by Deputy Commr./Additional Deputy Commissioner.
24. Let it, therefore, be seen whether Section 350 contains a mere technical rule or is substantial provision. This aspect is important, because Para 14 permits spirit alone of the Code to be applied and not its letter. The Supreme Court had occasion to deal with the question as to what is the spirit of the Code in State of Nagaland v. Ratan Singh : 1967CriLJ265 . It was observed there in para 29 that when it is stated that the spirit would apply what is meant is that the technicalities of the Code should not trammel litigation embarked by a people not used to it. It was also stated that technical rules are not to prevail over the substance of the matter. On the basis of these observations it can be stated that if a provision of the Code is regarded as substantial, the same would form a part of the spirit of the Code, though while following the same, technicalities or rigours of the provision has to be dispensed with.
I have no doubt that provisions contained in Section 350 are of great importance so far as the trial is concerned and cannot be regarded as a mere technicality. On this depends the time which a trial is likely to take and when delay in administration of justice is proverbial, this aspect has its importance so far as the accused is concerned, who is facing the trial. It is perhaps because of this that the new Code has retained this provision in its Section 326.
24-A. Rigidity of a provision may also be regarded as a factor not to regard the same as a part of the spirit because a rigid provision fetters the discretion, and it was observed in Ratan Singh (supra) in para 30 that in these areas it was considered necessary that discretion should have greater play than technical rules. It would be apposite to note in this context that Section 350 has no rigidity in it inasmuch as it leaves the matter to the discretion of the Magistrate whether to act or not on the evidence recorded by his predecessor. No doubt that discretion was to be exercised fairly and according to well settled principles, but what is of importance is that it has not put the matter in strait jacket.
25. Another aspect of the matter which was focussed during the hearing was whether it would advance the cause of justice if the spirit of the provision contained in Section 350 is made applicable to these areas. This was done because it was observed in Ratan Singh that the spirit of the Code was made applicable so that justice may not fail because of some technicality. On the question whether application of the spirit of Section 350 would advance the cause of justice, there can reasonably be two opinions. But when it is noted that de novo trial is bound to delay the disposal of the case and delay having become almost cancerous, the scales perhaps tilts in favour of the person who desires acting on the evidence already on record, if hardship is also present. The only argument which can be made against such a course whould be that a trying officer who has not seen the demeanour of the witness would not be in that advantageous position to find out the worth of his evidence as the one who had so seen.
There could be no denial that this aspect has its own importance, but it seems to me that to over emphasize this may cause some dent to the cause of larger justice, because, in that case, confidence of the litigant public in the appreciation of evidence by the appellate Courts would get shaken. In this connection, it is worth noting that the Parliament itself had amended (as noted in Payare Lal's case (supra)) the provisions of the Criminal Law Amendment Act, 1952, to make Section 350 of the Code applicable to proceedings before a Special Judge. Then the Law Commission of India had recommended to extend provision of Section 350 to Judges of the Sessions Courts as well. When this matter was examined by the Joint Committee, it however observed as quoted in the show cause of the Additional Deputy Commissioner that 'it is one of the principles of Criminal Law that the person who hears the entire evidence must give judgment. The departure from this principle should not be permitted in the case of Sessions Judge who usually try the more serious offences.' Ultimately, recommendation of the Law Commission was not accepted by the Parliament as would appear from Section 326 of the new Code.
26. Shri Das, who appeared for the petitioner, contended that the Additional Deputy Commissioner or for that matter the Deputy Commissioner does not always, or is not required to, try serious offences only. This follows from para 2 of the order, according to which criminal justice has to be administered by the Deputy Commissioner or Additional Deputy Commissioner and his Assistants. It may be that in a particular place, there is no Assistant to the Deputy Commissioner, in which case he would try petty cases also. As we are examining the larger aspect of the matter, namely; whether spirit of Section 350 applies at all in a trial before the Deputy Commissioner or Additional Deputy Commissioner, the fact that he may try serious offences like that of murder should not be the reason to refuse it, because Section 350 itself, as already noted gives a discretion to the trying officer to invoke or not the provision of Section 350.
27. It was submitted by Shri Das that the fact that the Deputy Commissioner or Additional Deputy Commissioner while trying even a murder case adopts the procedure of warrant case would go to show that the court of Deputy Commissioner or Additional Deputy Commissioner has to be put in the category of the Court of Magistrate First Class and not of Court of Session, as these were classified by the old Code (when there was no separation of executive and judiciary) which was in existence when the rules in question had been framed. That the Deputy Commissioner or Additional Deputy Commissioner while trying heinous offences like murder adopts the warrant procedure is admitted by Shri Sarma. There is nothing wrong in following this procedure even in a murder case, which has the approval of the Supreme Court in Ratan Singh's case (supra).
But the question is, where would we place the officer trying such a case. Whether he should be regarded as a Sessions Judge or a Magistrate. According to Shri Das, it cannot be the former, because as observed in Ratan Singh (supra) in para 29, 'The question of a Sessions trial cannot arise because there is no provision for committal proceeding and there are no Sessions Judges in these areas.' It may be stated that under Rule 16 of the Rules for the Administration of Justice and Police in Naga Hills, which was under examination in Ratan Singh (supra), the Deputy Commissioner could pass sentence up to death; and his Assistants could exercise powers not exceeding those of Magistrate First Class, as is the position under para 4 of this order. The learned Counsel rightly drew our attention to the provisions in the Assam Opium Prohibition Act, 1947, according to Section 27 of which, even a Magistrate First Class could be empowered to award a punishment up to 10 years, which is the sentence provided by Sections 7 and 18 of the Act.
At the relevant time, the power of the Magistrate First Class was to award imprisonment not exceeding two years. It cannot be said that just because a Magistrate has been authorised by Section 27 of the Opium Prohibition Act to award punishment up to ten years, he should be regarded as a Sessions Judge, who alone could have awarded punishment up to ten years under the provision of the old Code. The provision in para 4 (1) of the Order that a Deputy Commissioner or Additional Deputy Commissioner may pass any sentence authorised under the Indian Penal Code would not therefore, by itself make him a Sessions Judge, according to me. The provision in para 4 (2) that the courts of the Assistant to the Deputy Commissioner shall exercise powers not exceeding those of a Magistrate First Class cannot mean that the Deputy Commissioner or Additional Deputy Commissioner has to be regarded as a Sessions Judge inasmuch as under para 4 (2) the Assistant to the Deputy Commissioner may be conferred with the powers of a Magistrate Second Class only. Under the old Code, the District Magistrate had powers of a Magistrate First Class.
Under the new Code, one of the Magistrates First Class has to be appointed as Chief Judicial Magistrate, who has been given power to award punishment up to seven years, though a Magistrate First Class can award punishment up to three years. Despite the higher powers of the Chief Judicial Magistrate, he would be governed while trying cases by the procedure meant for a Magistrate. It would bear repetition to say that a Deputy Commissioner or Additional Deputy Commissioner may try petty cases also in these areas when he would follow the summons procedure, as stated in Ratan Singh (supra). Because of all these, I would place a Deputy Commr./Additional Deputy Commissioner in the category of a Magistrate rather than of a Sessions Judge even when he is trying a heinous offence. The provision of Section 3 of the Press (Objectionable Matters) (Extension to Assam Autonomous Districts) Act, 1953, of which reference has been made in the leading judgment, does not help us to solve the riddle. If anything, it reinforces the conclusion just reached, because some specific legislative sanction was needed to enable to the Deputy Commissioners in Autonomous Districts to discharge the functions entrusted to a Sessions Judge by the Parent Act, which indicates that in absence of Section 3(1), a Deputy Commissioner could not have so acted.
28. In this connection, our attention was drawn to two Bench decisions of this Court one reported in 1973 Assam LR 31 and another in Govt. Criminal Appeal No. 10 of 1972, disposed of on 21-2-1977. The first case has only laid down that a Sessions Judge cannot act on the evidence recorded by his predecessor. This decision has no application, because as already stated, I am of the view that a Deputy Commissioner or Additional Deputy Commissioner cannot be regarded as a Sessions Judge. No doubt, in Govt. Criminal Appeal No. 10 of 1972 (to which one of us, Islam, J. (as he then was) was a party) it was stated that a Deputy Commr. or Additional Deputy Commissioner could not use evidence recorded by his predecessor, but that case was decided without examining the question if spirit of Section 350 could be invoked; and as such, the decision does not contain a pronouncement on the point with which we are seized.
29. Taking in view all the above, I hold that a Deputy Commissioner or Additional Deputy Commissioner (and a fortiori, an Assistant to the Deputy Commissioner) can invoke the spirit of Section 326 of the new Code (which corresponds to Section 350 of the old Code), if on the facts and circumstances of a case he is satisfied about the necessity and propriety of doing so. In taking a decision on this matter, he may however bear in mind these factors: (1) Nature of the case-petty or heinous. It may be a sound exercise of discretion to ordinarily refuse to invoke spirit of Section 326 in heinous offence. Those offences may be regarded as heinous which are exclusively triable by a Court of Session under the Code of Criminal Procedure. (2) Time already consumed in the trial. (3) Type and volume of evidence recorded. (4) Hardship to the parties. As a safeguard, this power may be invoked in heinous offences (if felt otherwise desirable by the Court) on the accused consenting to it.
As the whole thrust of the principle that the judge who hears must decide the case is the anxiety to do justice to the accused, his consent has its definite importance in exercise of his jurisdiction, though, of course, not in conferring the same. I have mentioned these factors as guidelines only; and would not like the discretion of a Deputy Commissioner or Additional Deputy Commissioner to get fettered by these. So far as the present case is concerned, I would think that in view of the fact that the trial has already taken 8 years, the entire evidence has been recorded, the accused has disclosed his defence fully and the accused has consented to the earlier evidence being used in deciding the case, the learned Additional Deputy Commissioner would do so, and dispose of the matter most expeditiously.