Trevelyan and Rampini, JJ.
1. The only point for consideration in this case is whether the change of Magistrates operates to invalidate the conviction. The facts are stated in the petition. It appears that the evidence was taken before two Honorary Magistrates, Mr. L. J. Crowdy and Mr. H. E. Crowdy. The evidence for the defence was taken by Mr. L. J. Crowdy and Baboo Grish Chandra Sarkar. The two latter gentlemen delivered judgment. There is no doubt that, apart from any statutory provision, the only persons who can decide a case are those who heard the evidence and the arguments. The question remains whether the Code of Criminal Procedure permits this to be done in this case. The only section of the Criminal Procedure Code which expressly empowers one Magistrate to act upon the evidence recorded by another is Section 350, which clearly has no application to the present case. That applies only to a case where a Magistrate ceases to exercise jurisdiction and is succeeded by another Magistrate who has and exercises such jurisdiction. It does not appear that Mr. H. E. Crowdy at any time ceased to exercise jurisdiction in this case. This section is obviously intended to meet the case of transfer of Magistrates from one district to another, and to prevent the necesssity of trying from the beginning all cases which may be part-heard at the time of such transfer. This question is not a new one. In Shumbhu Nath Sarkar v. Ram Komul Guha 13 C.L.R. 212, where in a trial before a Bench originally constituted of a stipendiary and two Honorary Magistrates, one of the latter after the commencement of the trial was absent, and important evidence was recorded in his absence, but on the following day he signed the final order, the conviction was held to be bad.
2. In Sufferuddin v. Ibrahim I.L.R. 3 Cal. 754, where the fact were very similar to the present case, a Bench of this Court considered the conviction illegal on the ground, amongst others, that the Magistrates who passed the final order were not the same as those who heard the evidence. In Ram Sunder De v. Rajab Ali I.L.R. 12 Cal. 558, we find a similar decision. Mr. Kilby for the Crown contends that under Rule 8 of the rules, which came into force on the 15th December 1889, and are framed by the Local Government under Section 16, Code of Criminal Procedure, this conviction can stand. Rule 8 is as follows: 'Any part-heard case postponed to a further sitting of the Bench may be proceeded with if any member of the Bench has been present at the previous hearing in the case; but subject to the provisions of Section 350, Code of Criminal Procedure.' There is no doubt that if this rule is a legal one, we could not interfere with the conviction. The only portion of Section 16 under which it is contended that the Local Government has power to frame this rule, is paragraph (c), viz., 'the constitution of the Bench for conducting trials.' When power is given to provide for the constitution of the Bench, we think that ordinarily means to provide for the persons who are to constitute it, that is to say, what individuals or what classes of individuals. In the ordinary acceptation of the term, it has nothing to do with the powers which that Bench can exercise, and we think it clearly cannot give the power sought for in this case, viz., a power to decide a case upon evidence taken by other Magistrates. This is not a question of the constitution of the Bench. It is a question as to what are the powers of the Bench. It is a power which is only given in an extreme case in consequence of the necessities of this country, and is a power the exercise of which may frequently prejudice an accused person. Such a power would not be given by impliction, and even if it could be, there is nothing in the words 'constitution of the Bench 'which implies such power. We think that Rule 8 is clearly ultra vires. We accordingly set aside the conviction and direct that the fine, if paid, be refunded and a new trial held in the cases.