1. An objection has been taken that the Court, as constituted by myself as Judge and a jury which had been sworn in the presence of Mr. Justice Taleyarkhan, has no jurisdiction to try the present case. This objection is based upon a contention that the Court which actually had seisin of the case was the Court as constituted when the jury was formed, and that until that jury has been discharged, there cannot be another different Court which can try the case.
2. That contention no doubt has in its favour the authorities, to which my notice has been drawn, Empress v. Khagendra Nath Bannerji 2 C.W.N. 481 and Emperor v. Jotindra Nath Gui. 8 C.W.N. 58 The latter case is not directly in point, but it proceeds on a somewhat similar ground. The former case is more in point. The trial had commenced and the evidence had been partly gone into before one Judge, who retired from the case under Section 556 of the Criminal Procedure Code, which deals with a case in which a Judge is personally interested, without discharging the jury. The Chief Justice then appointed Stevens J. to proceed with the trial of the case, and the latter intimated his intention to proceed with the trial from the point where it had boon left. Thereupon it was contended on behalf of the accused that Stevens J. could not proceed with the trial on the ground I have already mentioned.
3. The point was argued, but no judgment was given, because the Advocate General appeared and entered a nolle prosequi under Section 333 of the Criminal Procedure Code. That was stated to be the only way out of the difficulty, unless the counsel for the accused withdrew his objection.
4. The present case differs from that case in that all that happened before Mr. Justice Taleyarkhan was that a jury was sworn, and counsel for the Crown had started opening his case. He had hardly got beyond reading the sections, and had merely stated a few of the main facts. At that point Mr. Justice Taleyarkhan was taken ill, and the trial was accordingly adjourned to this morning. Under the directions of the Chief Justice, I sat in the Sessions Court in place of Mr. Justice Taleyarkhan, and started this case de novo from the point that is called, in the heading above Section 286, the 'trial' of the case, It seemed to me that, as the preliminary proeeedings, which are referred to aS 'commencement of proceedings' in the heading above Section 271, were not any part of the actual trial, except as preliminary proceedings, that there would be no objection to this course. A Sessions Judge cannot of course act on evidence recorded by his predecessor, and on a change of Judge the Sessions trial must commence de novo, for (as has been ruled in Durga Charan Sanyal v. The Emperor (1908) 8 C.L.J. 59 Section 350 does not apply to a case of that kind. But in the present case I am not proposing to act upon any evidence recorded by Mr. Justice Taleyarkhan. The trial will bo entirely before me and the jury that was sworn in before Mr. Justice Taleyarkhan; and, in my opinion, the mere fact that the swearing in of the jury and reading out of the charges to the jury took place before another Judge would at most amount to an irregularity under Section 537 of the Criminal Procedure Code, which covers the case of an error, omission or irregularity in the proceedings before or during trial or in any inquiry or other proceedings under this Code. The Chief Justice under Section 108 of the Government of India Act has power to determine what Judge in each case is to sit, and it seems to me that, in view of the circumstances that arose from Mr. Justice Taleyarkhan's illness, he would have power to direct me to preside in the case that otherwise would have been tried by Mr. Justice Taleyarkhan with the present jury. The power can be exercised as the occasion arises, and it seems to me a very technical objection to take that, because the Chief Justice had passed certain orders under which Mr. Justice Taleyarkhan would ordinarily have presided at the present trial, when necessity arose, he could not revise those orders. Under Clause 36 of this Court's Letters Patent, my appointment by the Chief Justice to sit in place of Mr. Justice Taleyarkhan, operates to give me criminal jurisdiction in this case. I am, however, perfectly willing to accede to any request that the Crown may make (after this expression of opinion) that I should not proceed with this particular trial.
5. I ought to mention that Mr. Modi for the accused has raised no objection to my presiding at the trial, and the Advocate General after the expression of my opinion also does not object to the present trial going on.