P.N. Bakshi, J.
1. This is an application under Section 432, Cr. P.C.
2. A criminal complaint was filed by P. Sridhar, in his capacity as Branch Manager of U.P. Machinery Company, against the opposite party No. 2 Mata Prasad, in the court of the Judicial Magistrate, Rai Bareli, on 9-9-1971 for the commission of offences under Sections 177, 408 and 418, I.P.C. After enquiry the case was committed to the Court of Sessions Judge, Rae Bareli on 11th December 1972. The Sessions Judge transferred it to the file of the Additional Sessions Judge Sri L. S. P. Singh (S.T. No. 178 of 1972, State v. Mata Prasad). The trial commenced before Sri Singh on 29th/30th May, 1973. The petitioner P. Sridhar was examined before Sri L S. P. Singh on 23-7-1973 as P.W. 1 Vinod Chand was also examined on 23-7-1973 as P.W. 2 but his cross-examination continued on 24-7-1973. 1st August 1973 was the next date fixed in the case for evidence.
3. It appears that in the meantime, much prior to the date fixed, Sri L. S. P Singh, Additional Sessions Judge was ordered to be transferred from Rai Bareli to Unnao. Sri J. P. Sinha took charge from him as Additional Sessions Judge, Rae Bareli.
4. It appears that on 4th September 1974 a letter was sent by Sri B. D. Srivastava, Assistant Registrar, High Court, Allahabad to the District Judge, Rai Bareli-on a query being made by the letter-to the effect that Sessions Trial No. 178 of 1972 State v. Mata Prasad be tried de novo by the successor of Sri L. S. P. Singh. The petitioner objected before Sri J. P. Sinha for a de novo trial. His contention was that the case should be tried in the same continuation from the stage to which it had reached in the court of Sri L. S. P. Singh.
5. It appears that on 9th November 1974 Sri Sinha rejected the application filed by the petitioner embodying the aforesaid objections in the following words:
In view of the order of the Hon'ble High Court dated 31st August 1974 the present application is not maintainable and is hereby rejected.
Sd. J.P. Sinha
6. The petitioner has contended that a copy of the order dated 31st August 1974 alleged to have been passed by the High Court has not been supplied to him. He alleges further that no such order has been passed by the High Court in any judicial proceeding and if any administrative order has been passed, it would be of no consequence and would not be binding upon the Sessions Judge,
7. In the counter-affidavit which has been filed on behalf of Mata Prasad opposite party No, 2, it is averred as follows:
Paras 7 and 8 are not disputed. After the transfer of Sri L. S. P. Singh Sessions Judge, Rai Bareli a request was moved to the Hon'ble High Court for retaining Sri L, S. P. Singh in Rae Bareli on which the Assistant Registrar informed that it was not possible to keep him in the district and part-heard trial could be tried de novo.
8. The admitted position, therefore, appears to be that the order of Sri J. P. Sinha dated 9th November, 1974 was based upon the instruction which had been sent by the Assistant Registrar of the High Court to the effect that the part-heard trials left by Sri L. S. P. Singh, Additional Sessions Judge should be tried de novo by his successor Sri J. P. Sinha.
9. The petitioner contends that the Assistant Registrar had no jurisdiction to interfere with the judicial matters and to direct the Sessions Judge to proceed with the trial of a case pending before him in a particular manner. He submits that that was. clearly a question of law which should have been decided by the Court concerned and the Sessions Judge should not be guided in his decision by the administrative instructions sent by the Assistant Registrar.
10. I am inclined to agree with the submission made by the learned Counsel for the petitioner. Admittedly Sessions Trial No. 178 of 1972 had proceeded in part and the evidence of the complainant P. Sridhar and one other witness Vinod Kumar had been recorded before Sri L. S. P. Singh, Additional Sessions Judge. He was succeeded by Sri J. P. Sinha. It was of course open to the District and Sessions Judge concerned to seek the instructions of the High Court in its administrative capacity for retaining Sri L. S. P. Singh in Rae Bareli and it was perfectly within the administrative competence of the High Court to have informed the District and Sessions Judge that it was not possible to retain him at Rae Bareli for the completion of this trial. But I am unable to reconcile myself with the direction given by the Assistant Registrar Sri B. D. Srivastava to the District Judge, Rae Bareli for de novo trial of Sessions Trial No. 178 of 1972, State v. Mata Prasad. I am also unable to reconcile myself with the impugned order passed by Sri J. P. Sinha, Additional Sessions Judge whereby he has rejected the petitioner's contention as not maintainable on the ground that the High Court has passed an order dated 31st August, 1974. What the order of the High Court dated 31st August 1974 is, has not been placed before this Court. From paragraph 6 of the counter-affidavit referred to above it appears to be a direction given by the Assistant Registrar for a de novo trial. It is not within the judicial competence of the Assistant Registrar to issue instructions to the Sessions Judge for proceeding with Sessions trials by adopting any particular procedure. The Code of Criminal Procedure is a comprehensive Code which lays down various provisions which have to be followed in conducting Sessions trials. Administrative instructions should not have been issued to the Sessions Judge concerned for proceeding with the trial de novo. So far as the Additional Sessions Judge Sri J. P. Sinha is concerned I am constrained to remark that in following the administrative directions of the Assistant Registrar, he has completely abdicated his functions as a Judge. It was a different matter if administrative instructions were sought with regard to the transfer of Sri L. S. P. Singh for the trial of the case, but for the procedure to be adopted in the absence of Sri L, S. P. Singh, the duty was cast upon the Sessions Judge (Sri J. P. Sinha) to study the legal procedure carefully and to give his own independent decision thereafter, which he has failed to do in this case.
11. The impugned order of Sri J. P. Sinha, rejecting the petitioner's application dated 9-11-1974 as not maintainable suffers from a technical legal defect and must, therefore, be set aside.
12. I shall now consider the legal question involved in this case. As already mentioned the petitioner contends that there is no provision for de novo trial in the court of Session in the Criminal Procedure Code, as such the trial should be continued from the same stage at which it was left by Sri L. S. P. Singh. The petitioner also submits that he is no more in the service of the U. P. Machinery Company, Rae Bareli and that he may be transferred elsewhere and hence may not be available for giving evidence afresh in this trial. On the other hand, counsel for the opposite party has submitted that there is no express prohibition in the statute, prohibiting a de novo trial and the principle of natural justice requires that 'he alone may decide who has heard the evidence'. I shall now examine these contentions.
13. In a Full Bench case of the Madras High Court reported in AIR 1958 Mad 571 : 1958 Cri LJ 1412 in Fernandez, In re it was held that the conviction of the accused having been passed on evidence partly recorded by one Sessions Judge and partly by the other is void and should be set aside. This decision has been based upon several earlier rulings of that court. The same principle has been laid down in the decision of Andhra Pradesh in a Full Bench case reported in : AIR1955AP87 , Subbarayudu v. State, in which it was observed as follows:
The ordinary rule in criminal matters is that the judgment may be delivered only by the person who has heard the whole of the evidence in the case. This principle is well established and has been firmly and consistently enforced.
The principle that 'He alone may decide who has heard the evidence' is a salutary principle of natural justice which has been accepted in various decisions of this country, some of which have been referred to above. The Supreme Court has also ruled a number of times that the assessment of evidence by the trial court should not be lightly interfered with by the courts of appeal for the simple and obvious reasons that the demeanour of a witness is carefully watched and scrutinised by the trial court, which is in the best position to assess the reliability of the witness. The same principle is applicable to Sessions trials also. If a part of the evidence is recorded by one Sessions Judge, his successor will not have the advantage of noticing the demeanour of the witnesses whose statements had been recorded earlier and thus he would be deprived of an opportunity to correctly assess the evidentiary value of their statements.
14. Counsel for the petitioner has laid emphasis upon the decision of the Andhra Pradesh High Court reported in : AIR1960AP355 . In re Ibrahim Ali in support of his submission that, no de novo trial is, in the circumstances of the present case, necessary. That case is clearly distinguishable. In the first place the entire evidence had been recorded in that case and an appeal was filed against conviction. The statement of the Medical Officer was recorded by the predecessor-in-office of the Sessions Judge, who delivered the judgment in that case. A question arose whether the entire trial would be vitiated. The High Court of Andhra Pradesh was of the view that the proceedings would not be void and without any prejudice being shown the conviction could not be set aside. While making these general observations the High Court of Andhra Pradesh made it clear that this decision rested on the fact that the predecessor-in-office of the present Sessions Judge only recorded in the deposition of the Medical Officer. Section 509, Cr. P.C. permitted the recording of the statement of the Civil Surgeon on commission and the same could be tendered in any enquiry, trial or other proceedings under the Code, although the Civil Surgeon was not called as a witness. The Andhra Pradesh High Court was of the view that-
It would be the height of absurdity to hold when a deposition taken by a Magistrate or on commission is admissible and can, therefore, be regarded as part of the evidence in the case, a deposition taken by the Sessions Judge could not be so treated by his successor-in-office.
It was in those circumstances that it was held that no retrial was necessary and the successor-in-office of the Sessions Judge could continue the trial and dispose of the case. The facts and the circumstances of the present case are wholly different. Here, the objection with regard to the trial de novo has been taken at the very initial stage. This is not e case of a deposition of the Medical Officer covered by Section 509, Cr. P.C. As such this ruling will have no application to the facts of the present case.
15. Learned Counsel for the petitioner has also placed reliance upon a Full Bench decision of the Hyderabad High Court reported in AIR 1952 Hyd 66 : 1952 Cri LJ 722, State of Hyderabad v. Sidlingappa in which Section 281 of the Hyderabad Criminal Procedure Code corresponding to Section 350 of the Indian Criminal Procedure Code was considered. Section 350, Cr. P. C, provides an exception to the salutary principle of natural justice that 'he alone may decide who has heard the evidence', and gives discretion to the Magistrate under certain circumstances to act upon the evidence recorded by his predecessor and to decide the case. Such a power has not been conferred by the statute on the Sessions Judge conducting a Sessions trial. The arms of the Legislature were wide enough to have conferred similar powers upon a Court of Session, if it was intended to do so. But in its absence, courts of law shall refrain from discharging the functions of the Legislature, and conferring powers upon courts or tribunals, not conferred by the statute in violation of the rules of natural justice.
16. It may be mentioned that in the aforesaid Hyderabad case no objection was taken as to the procedure to be followed at the stage of the trial. The objection was raised only in appeal after conviction. The majority judgment of that Court was to the following effect:
Where the prosecution does not object to the admission of the evidence recorded by a Judge who ceased to be a Judge presiding over that court and raised the question in appeal and asks for the setting aside of the judgment on the ground he can be allowed to do so. But it would be left to the appellate court to exercise its discretion and the appellate court would interfere only if it comes to the conclusion that the lower court Judge by acting upon the evidence recorded by his predecessor has fallen into a palpable error which has resulted in failure of justice.
The facts of the above case are clearly distinguishable from the facts of the present case.
17. In my opinion, therefore, and I have no doubt in my mind that when a Sessions Judge, who has recorded the evidence of witnesses in part is subsequently transferred, it is incumbent upon his successor-in-office to conduct the trial de novo in keeping with the salutary and cardinal principle of natural justice that it is the right of an accused person to claim that his case should be decided by a Judge who has heard the whole of it and not merely a part.
18. I am, therefore, of the view that Sri J. P. Sinha, Additional Sessions Judge, Rae Bareli should proceed with the trial of the case de novo.
19. As for the contention of the petitioner that he is no longer in the service of the U. P. Machinery Company, Rai Bareli and that he may not be available for evidence in the de novo trial, I am of the opinion that there is no substance in this contention. I have carefully examined the affidavit filed in support of this petition. I do not find any averment in this affidavit to indicate that the petitioner had left the service of the U. P. Machinery Company, Rai Bareli. Even assuming that he has left the service, the procedure prescribed by law cannot be avoided to suit his convenience. The petitioner P. Sridhar has filed the present criminal complaint against the opposite party Mata Prasad. If he desires to pursue this complaint it is incumbent upon him to appear before the court when the de novo trial commences. If he fails to do so, I have no doubt that the Judge concerned would follow the procedure prescribed by law in deciding the trial.
20. I, therefore, do not find any force in this petition which is hereby dismissed.
21. Let a copy of this judgment be sent to the Administrative Judge for his information.