P.K. Tare, J.
1. This appeal is by the accused against his conviction under Section 326, Indian Penal Code and the sentence of rigorous imprisonment for 3 years passed by Shri D. B. Pawday, First Additional Sessions Judge, Sagar, in Sessions Trial No. 123 of 1959, dated 31-12-1959.
2. The appellant was prosecuted for an offence under Section 307, Indian Penal Code read with Section 34, Indian Penal Code along with one Harsingh in connection with an attempted murder said to have been committed on 25-4-1959-at mouza Ratona.
3. The sessions trial was partly conducted by the late Shri Mehtab Ahmed, Additional Sessions Judge, Sagar. After his death, Shri D. P. Pawday, succeeded him as First Additional Sessions Judge at Sagar. The rest of the evidence was recorded by Shri Pawday and judgment was ultimately delivered by him. The learned Judge found the present appellant guilty of an offence under Section 326 Indian Penal Code and sentenced him as aforesaid.
4. The learned counsel for the appellant urged that the conviction and the sentence passed on the appellant are illegal, in asmuch as, Section 350 of the Criminal Procedure Code, being inapplicable to a Sessions Court, the Additional Sessions Judge had no power to base a conviction on evidence partly recorded by his predecessor and partly by himself. It was, therefore, suggested that the conviction and the sentence passed on the appellant ought to be set aside.
5. As the wording of Section 350, Criminal Procedure Code indicates, it uses the word Magistrate only. It cannot be made applicable to a Sessions Court. This view was taken by a Division Bench of the Patna High Court presided over by Das and Dalziel J. in Ramchandra Naik y. Emperor, ILR 25 Pat 832 : (AIR 1947 Pat 428). The learned Judges constituting the Division Bench relied on the earlier decisions in Tarada Baladu v. Queen, ILR 3 Mad 112, King Emperor v. Sakha-ram Pandurang ILR 26 Bom 50, Emperor v. Badri-prasad, ILR 35 All 63, Emperor v. Dorabji Pest-onji, AIR 1927 Bom 161 and some other unre-ported cases.
6. But, however, a Full Bench of the Hyderabad High Court in State of Hyderabad v. Sid-lingappa, AIR 1952 Hyd. 66. took the contrary view and held that Section 350, Criminal Procedure Code (equivalent to Section 281 of the Hyderabad Criminal Procedure Code) could be ap-plied to the Sessions Court as there was no prohi-bition in the Criminal Procedure Code for adopting such a course. It was for this reason that the learned Judges constituting the Full Bench held that the principle of Section 350, Criminal Procedure Code could be applied to a Sessions Court as well.
7. In view of this conflict of opinion, I might have been required to refer this case for consideration by a larger Bench. But there is reported ruling of the Judicial Commissioner's Court and, therefore, in my opinion it is not necessary for me to refer this case to a larger Bench. Stevens, Officiating Judicial Commissioner in Empress v. Kaluram. 7 CPLR Cr. 1, following the case in ILR 3 Mad 112, expressed the opinion that Section 328 of the Criminal Procedure Code (No. 10 of 1872), which was equivalent to Section 350 of the present Criminal Procedure Code was not applicable to a Sessions Court. I am not inclined to differ from the view expressed by Stevens, Officiating Judicial Commissioner, which is also supported by some later decisions, namely, ILR 26 Bom 50 (supra), ILR 35 All 63 (supra), and ILR 25 Pat 832 : (AIR 1947 Pat 428) (supra). I would follow the said view with all due respect to the learned Judges of the Hyderabad High Court constituting the Full Bench.
8. It is, therefore, clear that the learned Additional Sessions Judge could not act on evidence partly recorded by his predecessor and partly recorded by himself. He ought to have recorded all evidence himself afresh. Therefore, the conviction and the sentence passed on the appellant are based on inadmissible evidence. It would, therefore, be necessary to set aside the conviction and the sentence and to direct a retrial of the appellant for the alleged offence under Section 307, Indian Penal Code.
9. AS a result, this appeal partly succeeds and is accordingly allowed and the case is remitted to the Court of Additional Sessions Judge for a de novo trial.