1. The sole ground on which we are asked to revise the decision of the Lower Appellate Court in this case is that all the Bench Magistrates who were present at the earlier stages of the case did not take part in the decision thereof or sign the judgment, It is not denied that the two Magistrates who did sign the judgment were present throughout all the earlier hearings and heard all the evidence or that they constituted a legal quorum.
2. I see no reason to differ from the view taken in Karuppana Nadan v. Chairman, Madura Municipality I.L.R. (1898) Mad. 246, which is clear authority for holding that the conviction is not illegal. This conflicts with no provision of law, and no consideration of justice or expediency. The contrary view would materially hamper the work of Benches of Magistrates in all but the very simplest cases. I do not think any argument can be based on a supposed analogy with the case of a jury, or a body of arbitrators. The law and practice in England appears to be similar to what I hold to be legal here. Vide Section 29 of the Summary Jurisdiction Act.
3. I would dismiss the petition.
Seshagiri Ayyar, J.
4. In this case, the accused were charged with assault under Section 352 of the Indian Penal Code, and convicted. The trial was before a bench of Honorary Magistrates for the town of. Kumbakonam. At the commencement of the trial, six members of the bench, including the president, sat to hear the case. On adjourned hearings sometimes four and sometimes two only took part. The trial which was concluded on the 19th June 1913 was attended by only two. They delivered the judgment in the case. It is conceded that these two Magistrates took part in the trial throughout. The question is whether the proceedings are vitiated by the fact that those who took part in the trial at the beginning and at the intermediate stages were not present to give their final decision in the case. Section 15 of the Code of Criminal Procedure, Clause (1), empowers the local Government to direct 'two or more Magistrates to sit together as a bench.' If a bench had been constituted in this manner, it may well be argued that if any member of the bench ceases to take part in the subsequent proceedings, the trial is not regular. In the second clause of that section, the legislature has provided that the powers of a bench shall, be 'of the highest class conferred on any one of its members.' If a bench took cognisance of a case triable by a First-class Magistrate on the ground that one of its members was a Magistrate of the first class, can it be tried by the remaining members in his absence? The intention of the legislature apparently is that all the members before whom the case was begun should continue to take part in the proceedings until judgment. Therefore, if the matter were res integra, I would have felt considerable hesitation in holding that the proceedings in this case are regular. But it was decided in this Court in Karuppana Nadan v. Chairman, Madura Municipality I.L.R. (1898) Mad. 246, that the absence of some of the Magistrates from the further stages of the trial and at the time of judgment will not vitiate the proceedings. I am unwilling to disturb a practice which has guided Lower Courts for such a long period. Ordinarily, Honorary Magistrates will not be able to sit continuously and it may result in the undue prolongation of trials, if they are required to attend throughout. The object of appointing Honorary Magistrates to hear cases is to ensure speedy disposal; that will be defeated by insisting upon the attendance of all the members of the bench from beginning to end. While thus alive to the difficulties which may result from not following Karuppana Nadan v. Chairman, Madura Municipality I.L.R. (1898) Mad. 246, I would suggest that the Government under Section 16 of the Code should frame rules to obviate the difficulty. The legislature must also make a change in the language of the section. The analogy of arbitrators is not in point. As pointed out by Mr. 3, 0. Adam for the Public Prosecutor, the arbitrators derive their power under a contract and each of the referring parties is entitled to say that he has the right to the experience and guidance of every referree deciding his case. Thammiraju v. Bapiraju I.L.R. (1889) Mad. 113, proceeds on that principle. Nor is the provision relating to the termination of the proceedings when one of the empanelled jurors is unable or unwilling to take part in the trial in pan malaria with this case. The minimum number of jurors has been fixed by the notification of the Government in the different districts of the Presidency. The ab.senoe of one of the jurors will vitiate the trial as the required number does not take part in it. On the other hand, the rules promulgated in England for trials by Justices of the Peace (Halsbury, Volume XIX, Section 1259J seem to indicate that the trial will become invalid only if persons who did not take part in the taking of the evidence assisted in arriving at the final decision: Hardwar Sing or Lall v. Khega Ojha I.L.R. (1893) Cal. 870, and Damri Thakur v. Bhowani Sahoo I.L.R. (1896) Cal. 194, proceed upon this principle. I agree with my learned colleague in dismissing this petition.