Norman Macleod, Kt., C.J.
1. The accused were charged with the offence of assault under Section 352 of the Indian Penal Code before a Bench of Magistrates of Bijapur. After several hearings the accused Nos. 1 and 2 were convicted under Section 352 and sentenced to pay a fine of Rs. 125. It appears that the trial began before six Magistrates, but one of them withdrew from the trial and took no further part in it. One of the five remaining Magistrates, Mr. Raghoji, was absent during part of the trial. Eventually he with three other Magistrates who had been sitting throughout the trial signed the order convicting the accused, while the fifth Magistrate, Mr. Chunilal, who had also been there throughout, withdrew from sitting in the Court. Two difficulties arise in the construction of the rules for the guidance of the Magistrates which are before us, which were sanctioned by the Government Resolution No. 3447 of 19th May 1916.
2. Rule 4 says that ' the Bench in session shall ordinarily consist of ten Magistrates, but in order to form a quorum at a trial or inquiry at least three members shall, from the beginning to the end thereof, be present as members of the Bench.'
3. Rule 5 says : 'If for any cause it is found necessary to adjourn the hearing of a case after the evidence has been partly taken, the trial shall either be completed before the Magistrates before whom it was commenced or shall be held afresh before a different set of Magistrates.'
4. Rule 7 says that 'No Magistrate, who has been absent during any part of the trial, shall give an opinion or record a vote to the final order of conviction, sentence, acquittal or discharge'.
5. Clearly Rule 7 has been contravened, and that is a serious matter, because it is certainly wrong that a Magistrate who has been absent during part of the trial should express an opinion on evidence which he has not heard, and very possibly influence his fellow Magistrates, although they are in a better position than he is to decide the case.
6. Rules 4 and 5 may be construed in two different ways. One construction may be that all that is necessary to constitute a legal trial is the presence of the same three Magistrates from start to finish, no matter how many other Magistrates may have taken part in the trial for one or more days, provided they do not give an opinion or record a vote as to the final order. The other construction is that as soon as one of the Magistrates who commenced the trial is not present at an adjourned hearing, the remaining Magistrates are not competent to continue the ease, but it must be commenced afresh. Certainly the latter construction would cause very great inconvenience not only to the Magistrates, but also to accused persons, because it can for imagined, if there were ten Magistrates at the commencement of the trial, and the trial was one which was likely to last for several days, unless all those ten Magistrates continued up to the end to be present, the case on any one day when one Magistrate was absent would have to be stopped and commenced afresh. However, that is a matter for the Government to consider. It is certainly desirable that the rules should be so clear that no possible argument could be raised with regard to their construction. In this case, I think, there has been a clear irregularity, whatever construction is put on Rules 4 and 5, because Mr. Raghoji, who was absent during part of the trial, gave an opinion and recorded a vote as to the final order. The conviction and sentences must, therefore, be set aside, and the fines, if paid, refunded.
7. I concur. I desire to add a word with regard to the remark which appears in the judgment of the Bench Magistrates that Mr. Chunilal withdrew from sitting in the Court. We are informed by the pleaders in the case that Mr. Chunilal was one of the Magistrates who were present at all the hearings. If that were so, I do not think that Rule 7 can apply to Mr. Chunilal; and as a Magistrate who heard the case from beginning to end, it was his duty to give his opinion, whatever that opinion might be. I do not think that it is open to a Magistrate, after having taken part in the trial throughout and having heard the evidence, to take up a position which Mr. Chunilal is described in the judgment to have taken up.