1. A preliminary point has been raised that Mr. Kanhaiya Lal Nagar, at the time of delivering judgment, had no jurisdiction as Sessions Judge and therefore the convictions and sentences are illegal. We have called for a report from Mr. Kanhaiya Lal Nagar. He states that he made over charge of the office of the Sessions and Subordinate Judge, Banda, on the forenoon of 25th February 1932 and he delivered judgment in this case on the forenoon of the same day, so far as he recollects. He states that when he signed the charge-sheet the judgment was ready and only a fair copy was being typed. He delivered the judgment as soon as it was ready, after the charge-sheet had been signed.
2. We also have an affidavit sworn by Mr. Kutbuddin Ahmad, a pleader of Banda, who was engaged by the Crown to represent the two accused persons in the Sessions trial. He positively asserts that judgment in this case was delivered by Mr. Kanhaiya Lal Nagar between 1 and 2 p.m. on 25th February 1932. He gives further details which show that he has a distinct memory of the occurrences of that day. Mr. Kidwai, I.C.S., took over charge of the office of the Sessions and Subordinate Judge, Banda, on the forenoon of that date between 10 a.m. and 11 a.m. and. actually heard some appeals on the Bench between 11 a.m. and 1 p.m. It was after Mr. Kidwai rose for lunch at 1 p.m. that Mr. Kanhaiya Lal Nagar occupied the seat vacated by Mr. Kidwai and delivered judgment in this case. We must take it that this represents what actually took place and that the judgment was in fact delivered after 1 p.m. on 25th February. It follows that Mr. Kanhaiya Lal Nagar had vacated the office of Sessions and Subordinate Judge, Banda-before the time when he delivered judgment in the case. In our opinion therefore he had no jurisdiction to deliver judgment and the convictions and sentences are bad.
3. It seems clearly necessary that there should be a retrial as the case is a very important one and clearly there must be a prima facie case against the accused persons. We therefore set aside the convictions and sentences and order that the case he retried by the Sessions Judge of Banda. The accused shall remain in custody pending the trial.