M.S. Nesargi, J.
1. The petitioner has prayed that the judgment dated 19-7-1077 passed by the Sessions Judge, North Kanara, Karwar, in Criminal Appeal No. 11 of 1977, setting aside the conviction and sentence passed on respondent 1 by the Chief Judicial Magistrate, Karwar, in C. C. No. 1344 of 1976, and directing that there shall be a de novo trial by the Judicial Magistrate First Class, Karwar, after registering the case on his file, be set aside,
2. The petitioner filed a complaint before the Chief Judicial Magistrate under Section 200 of the Code of Criminal Procedure, 1973 (to be hereinafter referred to as the new Code), The Chief Judicial Magistrate took cognizance of the offence alleged and issued process. On the accused-respondent 1 appearing before the Chief Judicial Magistrate, the Chief Judicial Magistrate decided to try the case summarily by applying the procedure for summary trial as provided by Section 260 of the new Code onwards. On 17-7-1976 the Chief Judicial Magistrate put the substance of the accusation to respondent 1, the accused, and recorded whether the accused pleaded guilty or claimed to be tried. Respondent 1 the accused claimed to be tried, The Chief Judicial Magistrate recorded the evidence of four witnesses. At that stage he was promoted as a District Judge and was transferred. The successor Chief Judicial Magistrate proceeded with the trial. On 29-1-1977 the counsel for the petitioner and the counsel for respondent 1 the accused, filed a memo before Sri S. N. Malla, Chief Judicial Magistrate, that the evidence already recorded by the predecessor of Sri S. N. Malla, may be read as evidence in the trial, in effect, they consented that Sri S. N. Malla may treat the evidence recorded by his predecessor as evidence recorded by himself. Sri S. N. Malla acted on the memo and ultimately convicted and sentenced respondent 1 the accused, and respondent 1 the accused preferred the aforementioned criminal appeal. It is under these facts and circumstances that the learned Sessions Judge has allowed the appeal, set aside the conviction and sentence, and directed de novo trial by the Judicial Magistrate First Class, Karwar, presumably feeling that it would not toe in the interest of the parties if the case were to be tried again by Sri S. N. Malla as Sri S. N. Malla had already expressed Ms opinion on merits.
3. The cardinal principle of law in (criminal trial is that it is a right of an accused that his case should be decided by a Judge who has heard the whole of it, It is so stated by the Supreme Court in the decision in Payare Lal v. State of Punjab : (1962)ILLJ637SC . This principle was being rigorously applied prior to the introduction of Section 360 in the Code of Criminal Procedure, 1898 (to be hereinafter referred to as the old Code). Section 326 of the new Code deals with what was intended to be dealt with by Section 350 of the old Code. Section 326 (3). of the new Code reads as follows:
Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under Section 322 or in which proceedings have been submitted to a superior Magistrate under Section 325.
4. It is hence plain that the provisions of Section 326 of the new Code are not applicable to summary trial. When the provision in Section 350 of the old Code was not applicable to certain trials, their Lordships of the Supreme Court have in Payare Lal's case (1962 (1) Cri LJ 688) (SC) laid down that trial was to be held de novo as Section 350 was an exception to the aforementioned cardinal principle of criminal law. Hence, it follows that Section 326 of the new Code also is an exception to the aforementioned cardinal principle of criminal law. Therefore, except in regard to those cases which fall within the ambit of Section 326 of the new Code, a succeeding Judge or a Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He has got to try the case de novo. In this view of the matter, the learned Sessions Judge is right in setting aside the conviction and sentence, and ordering trial de novo.
5. The next question that arises is as to from what stage the Judicial Magistrate First Class, Karwar, should proceed with the trial de novo.
6. As it has been seen that Section 326 of the new Code is an exception to the cardinal principle in trial of criminal cases, it is crystal clear that if that' principle is violated by a particular Judge or a Magistrate, he would be doing something not being empowered by law in that behalf. Therefore, Section 461 of the new Code would be applicable. The Supreme Court has in Payare Lal's case, 1962 (1) Cri LJ 688 (SC) held that it was an irregularity which could not be cured. Section 461 of the new Code narrates Irregularities which vitiate proceedings, The relevant provision is Clause (1). It reads as follows:
461. Irregularities which vitiate proceedings : - If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely;
X X X X X (1) tries an offender; X X X X X his proceedings shall be void.
A plain reading of this provision shows that the proceedings held by a Magistrate, to the extent that he is not empowered by law, would be void. That is the view expressed by the Patna High Court in the decision in Awadh Singh v. Emperor AIR 1947 Pat 23 : 48 Cri LJ 222.
7. Even when the memo was filed by the counsel on both sides on 29-1-1977, power could not have been, in law, conferred on Sri S. N. Malla - the succeeding Chief Judicial Magistrate, by such a consenting memo.
8. In view of the foregoing reasons, this revision petition is dismissed. It is made clear that the Judicial Magistrate First Class, Karwar, should proceed with the trial from the stage of recording the evidence of witnesses right from the beginning, after registering the case.