Kunhi Raman, C.J.
1. The complainant is the petitioner before this Court. The accused were 4 in number. The charge against them was that they had voluntarily caused hurt to the complainant on 22.8.1921 at about 4 P.M. The trial took place before the Honorary Second Class Bench of Magistrates at Neyyattinkara. Three Magistrates have signed the judgment. They are: Messrs. P. Velayudhan Pillai, A. Dasiah and P. Venkitachalam Aiyer.
2. The first ground urged on behalf of the complainant Is that the constitution of the Bench changed from time to time and the three Magistrates aforesaid who have signed the judgment did not have the advantage of hearing the evidence throughout the course of the trial. Mr. Warrier, the learned Counsel for the petitioner, has prepared an abstract of the proceedings that took place before the Bench of Magistrates on the different dates on which the case was heard. According to this abstract, P.W. 1 was examined before Messrs. Veiayudhan Pillai, Sankara Pillai and Fletcher. After the charge was framed against the accused, the witness was recalled for cross-examination and this took place before Messrs. Narayanan, Dassiah and Sankara Pillai. P.W. 2 was examined before Messrs. Veiayudhan Pillai, Sankara Pillai and Sankaran. P.W. 3 was examined before Messrs. Sankara Pillai, Fletcher and Narayanan. The witness was recalled for cross-examination after the charge was framed against the accused and was cross-examined before Messrs. Sankara Pillai, Dessiah and Narayanan.
P.W. 4 was examined before Messrs, Sankara Pillai, Velayudhan Pillai and Narayanan. He was recalled for cross-examination and was cross-examined before Messrs Sankara Pillai, Dassiah and Veiayudhan Pillai. P.W. 5 was examined before Messrs. Sankara Pillia,. Fletcher and Narayanan and cross-examined after the charge was framed, before Messrs. Sankara Pillai, Narayanan and Dassiah. P.W. 6 was exmined before Messrs. Sankara Pillai, Fletcher and Sivaramakrishna Iyer and cross-examined after the charge was framed, before Messrs. Dassiah, Venkitachalam Iyer and Veiayudhan Pillai. P.W. 7 was examined before Messrs. Fletcher, Sivaramakrishna Iyer and Sankara Pillai and cross-examined after the charge was framed before Messrs. Venkitachalam Iyer, Narayanan and Dassiah.
P.W. 8 was examined before Messrs. Veiayudhan Nayar, Venkitachalam Iyer and Sivaramakrishna Iyer P.W. 9 was examined before Messrs. Sankara Pillai, Sivaramakrishna Iyer and Fletcher, it will thus be seen that one of the three Magistrates who have signed the judgment had the advantage of hearing the evidence of all the witnesses called on behalf of the prosecution. The view taken by them in their judgment was that no case has been made out against the accused and therefore it was not necessary to call upon the accused to adduce evidence. They have accordingly acquitted the accused.
3. The relevant provisions which deal with the subject of changes in the constitution of the Bench of Magistrates during the course of a trial are to be found in Section 291 of the Travancore Criminal Procedure Code which corresponds to Section 350-A of the Indian Criminal Procedure Code. According to Section 291:
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 13 and 14, and the Magistrates constituting the same have been present on the Bench throughout the proceedings.
Sections 13 and 14 need not be read in detail. According to Section 13, the Government has got the power of authorising any two or more Magistrates in any district to sit together as a Bench and may confer on that Bench powers of a Magistrate of the First, Second of Third Class. Section 14 gives power to Government to make rules consistent with the Code for the guidance of Magistrates' Benches regarding the classes of cases to be tried, the times and places of sitting, the constitution of the Bench for conducting trials, the mode of recording evidence and the mode of settling differences of opinion which may arise between the Magistrates in Session. In exercise of the powers conferred upon them, rules have been framed by Government and the rule that is material so far as the present case is concerned is Rule No. 7, promulgated under Regulation V of 1067. According to Rule 7:
Every Bench shall consist of an uneven number of Members of not less than three. Each member of the Bench shall have a voice in deciding as to the admissibility of evidence and in the finding and sentence. In the event of disagreement among the members, the opinion of the majority shall prevail.
It is thus clear from this rule that the quorum described by the rule is three. It may 'be more than three, provided the number is uneven. In the present case, at each hearing, three Honorary Magistrates presided, but the three Magistrates who Ultimately pronounced judgment in the case did not have the advantage of nearing the evidence, of all the witnesses called for the prosecution, on the basis of which they reached, the conclusion that no case has been made out against the accused.
4. The learned Counsel for the respondents wants to rely upon the provisions of Section 446 of the Travancore Criminal Procedure Code which corresponds to Section 537 of the Indian Criminal Procedure Code. According to Section 446:
Subject to the provisions hereinbefore contained no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice.
It is significant that the section refers only to 'sentence or order passed by a Court of competent jurisdiction.' In the present case, we are not satisfied that the judgment was pronounced by a Court of competent jurisdiction inasmuch as the fundamental principles laid down in the rules framed by the Government for the constitution of Benches of Magistrates and for trial have been violated. In our judgment, this is not a mere irregularity but a vital illegality which cannot be cured, by the provisions of Section 446. The result is the decision reached by the Bench of Magistrates cannot be supported. It must be set aside. We order a re-trial before a competent Bench of Honorary Second Class Magistrates at Neyyattinkara.