1. This is a reference by the learned Sessions Judge of Ghazipur in a case in which the applicants for revision have been convicted by a Bench of Honorary Magistrates for offences under Sections 323 and 447, I.P.C., and sentenced to small amounts of fine.
2. The Bench of Honorary Magistrates in question consisted of three Honorary Magistrates, namely, Pandit Paras Ram, Pandit Lachhmi Narain and Maulvi Abdul Mughni. The case was heard on a number of dates. Maulvi Abdul Mughni did not join the other members of the Bench on several occasions when witnesses were examined. The learned Sessions Judge is of opinion that the presence of all the Magistrates constituting the Bench on all hearings is indispenssable for a valid trial of a case pending before it. I think this is a correct view of the law applicable to proceedings taken before a Bench of Honorary Magistrates constituted under Sections 15 and 16, Criminal P.C.
3. Before the Amending Act of 1923 there was some difference of opinion as regards the legality of a trial by a Bench whose constitution had been altered during the pendency of the trial. Section 350-A now added provides that
no order or judgment of a Bench of Magistrates shall be invalid by reason only of a change having occurred in the constitution of the Bench in any case in which the Bench by which such order or judgment is passed is duly constituted under Sections 15 and 16, and the Magistrates constituting the same have been present on the Bench throughout the proceedings.
4. There is no question of the constitution of the Bench of Magistrates having undergone a change in the case under reference. The same Magistrates constituted the Bench throughout the pendency of this case. One of the Magistrates did not however take part in the proceedings throughout, but absented himself on some occasions when certain witnesses were examined. The concluding part of Section 350-A quoted above makes it perfectly clear that all the Magistrates for the time being constituting the Bench must take part in the proceedings though, if during the pendency of the case the personnel of the Bench undergoes a change, the new member can replace an outgoing member without necessitating a fresh trial.
5. Apart from the view which is deducible from Section 350-A it is plain to my mind that individual Magistrates constituting a Bench have no jurisdiction to hear a case cognizable by the whole Bench. If therefore any member of the Bench is not present on any hearing no properly constituted Bench can be said to have been in existence. If therefore witnesses are examined by one or more Magistrates in the absence of one or more of those constituting the Bench they cannot be considered to have been examined by the Bench. In this view the order of conviction in this case is based partly on evidence recorded by the Bench as such and partly on evidence not deemed to be recorded by the Bench. A conviction based on such evidence is clearly unsustainable. Accordingly I accept the reference made by the learned Sessions Judge, set aside the conviction and sentence and direct a retrial as recommended by the learned Sessions Judge.