JUDGMENT Sulaiman, J.
1. This is a criminal references by the Sessions Judge of Azamgarh recommending that the conviction of the accused persons should be set aside and a retrial ordered. It is not necessary to state the facts of the case itself, us for the purpose of the reference it will be Quite sufficient to stats what happened in the proceedings. At Azamgarh three Honorary Magistrates constituted a Bench which had power to try this case. On most of the hearings, all the three Honorary Magistrates were present, but on 5th December 1932 one of them was absent. The case however was not taken up on that day and was adjourned. On 8th December 1932, the next day of hearing, one of the Honorary Magistrates happened to be absent. He rejoined on the next date and then continued to be present all along and ultimately took part in delivering and signing the judgment. On the 8th of December, when one of the Magistrates was absent, some witnesses ware examined and cross-examined. All the three Honorary Magistrates unanimously came to the conclusion that the accused were guilty and convicted them. Their appeal was dismissed by a Magistrate of the First Glass. On revision a point was raised before the learned Judge that inasmuch as one of the Honorary Magistrates was absent on one day, the whole trial was vitiated and the conviction could not stand. It is on this point that the case has been referred to the High Court. It came up before a Single Judge of this Court who has referred it to a Division Bench.
2. Under Section 15, Criminal P.C., the Local Government may direct any two Magistrates to sit together as a Bench and they exercise the powers of a Magistrate of the highest class to which any one of its members belongs. Section 16 empowers the Local Government or the District Magistrate (subject to the control of the Local Government) to make rules for the guidance of such Benches in respect of the constitution of the Bench for conducting trials, among other matters. For Azamgarh, a Government notification was issued on 5th October 1926 under which it was provided that two of these three Honorary Magistrates shall form a quorum. It is therefore not disputed that any two of the three Honorary Magistrates if present, would constitute the Bench and would be empowered to try the ease. Prior to 1923 there was some conflict of opinion as to what would be the effect if one of the members of such a Bench were absent on some of the hearings. The legislature has how intervened and added Section 350-A. It provides that:
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 15 and 16, and the Magistrates constituting the same have been present on the Bench throughout the proceedings.
3. We are not now concerned with the trend of rulings prior to this addition, but there are three recent cases of this. Court in which this added section has been interpreted. The case of Chiteshwar Dube v. Emperor A.I.R. 1932 All. 127 was somewhat similar to the present ease, inasmuch as one of the three Magistrates had been absent on a few occasions but was present at the time of the delivery of the judgment. The learned Judge set aside the conviction and ordered a retrial. So far as the facts go there can be no question that the conclusion was right. But there are certain observations in the judgment which have been strongly relied upon by the learned advocate for the accused. The learned Judge accepted the view of the Sessions Judge that the presence of all the Magistrates constituting the Bench on all the hearings was indispensable for a valid trial of a ease pending before it and observed at p. 42 (of 1932 A.L.J.) that the concluding part of Section 350-A makes it perfectly clear that all the Magistrates for the time heir constituting the Bench must take part in the proceedings though, if during the pendency of the case the personnel of the Bench undergoes a change, the new member can replace an outgoing member without necessitating a fresh trial.
4. It was further observed that it nay member of the Bench was not present on an; hearing no properly constituted Bench can he said to have been in existence.
5. We are not sure whether the learned Judge intended to lay down that if a number of Honorary Magistrates constitute a Bench and if only a few of them, sufficient to form a quorum, are present, and try the case, the trial is altogether illegal. Apparently, his attention was not drawn to the notification fixing a quorum which would obviate the necessity of the presence of all the Honorary Magistrates at the trial. If the learned Judge meant to lay down that all the Honorary Magistrates, irrespective of the quorum, must be present at all the hearings, then we would certainly not agree with that view. Furthermore, if it was intended to lay down that a newly appointed member can replace an outgoing member on the Beech trying the case, without necessitating a fresh trial, even where his presence is necessary for the purpose of a quorum, we would not agree with that view. In Ram Khelawan v. Sheo Nandan A.I.R. 1932 All. 191, another learned Judge had a case before him in which one of the three Magistrates was not present on some of the days of the hearing and the two Magistrates who had been present throughout actually differed in their conclusions. The third Magistrate who had been present on soma days joined them and agreed with the Magistrate who was in favour of the acquittal. It was on account of his opinion that the accused were acquitted. The learned Judge set aside the acquittal and ordered retrial. That obviously was a case where the opinion of the Magistrate who had not been present throughout the proceedings actually turned the scale and it was on account of his opinion that the accused were acquitted. There can be no doubt that in that case the order of acquittal was rightly set aside. Lastly, there is the case of Mathura v. Emperor A.I.R. 1933 All. 355, decided by another Judge who agreed with the view that where two Magistrates formed a quorum, the same two Magistrates must hear that particular case from start to finish and sign the judgment. The learned Judge did not interfere in that case because the third Magistrate who had been absent at some of the intermediate hearings had not joined in delivering the judgment which had been, pronounced by the two Magistrates who had been present throughout. It seems tons that Section 350-A is a saving section which provides that no order or judgment of a Bench shall be invalid by reason of a change in the constitution of a Bench-provided the Magistrates constituting the Bench have been presnt on the Bench throughout the proceedings.
6. Unfortunately, the section is not happily worded and it is not easy to see how the constitution of the Bench can be changed and at the same time the Magistrates constituting the Bench be present on the Bench throughout the proceedings. The only two possible cases where a change in the constitution may arise would be : (1) where one or more of the Honorary Magistrates completely drop out and never rejoin, so that although there has been a slight change in the constitution of the Bench by the dropping out of the member or members, the remaining members continue to be Magistrates who constitute the Bench and who are present on the Bench throughout the proceedings. (2) Another possible case, which is not likely to have been in the contemplation of the legislature is where a change in the constitution of the Bench may take place in the sense of a replacement, of some of the members of the Bench who take no part in the trial of the case at all, but for such a contingency no special provision was necessary.
7. It seems most likely that the section is intended to apply to only such cases where one or more members drop out altogether and the remaining Magistrates who constitute the Bench which passes the order or judgment have been present on the Bench throughout the proceedings. There can be no doubt that if any of the Magistrates constituting the Bench which pronounces the judgment or the order has not been present throughout the proceedings, then Section 350-A is not complied with. In such case there would at least be an irregularity in the trial. No case has been cited before us in which the question bas been raised whether a non-compliance with the provisions of Section 350-A would amount to a mere irregularity or would be an illegality so as to invalidate the whole trial. No doubt there are cases prior to 1923 in which the trials were considered to have been invalid on account of such defects. But inasmuch as Section 350-A in terms is a saving clause and does not directly prohibit or declare invalid the trial of a case where one of the Honorary Magistrates has not been present throughout the proceedings, but only indirectly or by implication assumes that the trial would be irregular if all the Magistrates constituting the Bench have not been present throughout the proceedings, it poems difficult to hold that such a defect 'is illegal and vitiates the whole trial. When there is no specific provision in the I Act requiring that all the Honorary Magistrates constituting the trial Bench must ho present at all the hearings and if they jara not present, the trial shall be illegal, vis can only infer that such defect would he irregular. The defect is not such as involves a direct infringement of any specific provisions of the Act, but is contrary to the spirit and the principle underlying Section 350-A. We think that we cannot regard it as anything more than an irregularity in the judgment or proceeding within the meaning of Section 537 of the Act. But under that section no irregularity in the judgment or proceeding would justify a reversal or alteration of the order, unless "such irregularity has in fact occasioned a failure of justice."
8. It is therefore necessary to see whether in this particular case there has been a failure of justice. Cases of the type of Ram Khelawan v. Sheo Nandctn A.I.R. 1932 All. 191. where the Magistrates have differed are obviously cases where a failure of justice would be occasioned on account of the the third Magistrate taking part in the delivery of the judgment or order. On the other hand, there maybe cases where an honorary Magistrate may happen to be absent on one day and may be present on other days of the hearing and then may absent himself and not take any further part in the proceedings. In such cases it may be most difficult to hold that there has been a failure of justice on account of his presence on some days of the hearing. Similarly, there may be cases where after a full hearing by all the Magistrates, one of the Magistrates absents himself at the final deliberations and a judgment is pronounced by two of the honorary Magistrates who have been present throughout the proceedings and is signed by them, and then the judgment is sent on by the reader for being signed by the third Magistrate as well, it may in such a case be very difficult to hold that the accused has been in any way prejudiced by the superfluous signature of the third Magistrate. But where an Honorary Magistrate who has not heard the whole evidence and has not been throughout the proceedings takes part in the deliberation and joins the others in arriving at the final decision, there is every likelihood of his influencing his colleagues. By virtue of his absence on some of the material dates he became; incompetent to form a true opinion on the merits of the case, and if he joins in the deliberations, there is likelihood of a failure of justice.
9. The learned advocate for the complainant has urged before us that in view of the explanation to Section 537 which emphasizes that in order to determine whether there has been a failure of justice, an omission to raise objection at an early stage of the proceeding is very material. It is pointed out that in the grounds of appeal before the First Glass Magistrate no point was taken that there had been a failure of justice on account of the third Honorary Magistrate rejoining at the later stage. But it is rightly pointed out on behalf of the accused that in view of the rulings of this Court, particularly that of Chiteshwar Dube v. King-Emperor A.I.R. 1932 All. 127 it was not necessary to put forward a further ground that there had been an irregularity and it was quite sufficient to point out that there had been an illegality.
10. No doubt the Magistrates in their explanation have expressed their opinion that there being unanimity, their decision would not have been different if the third Magistrate also had not joined. But we do not think that we can take this subsequent explanation as sufficient to justify the conclusion that there could not have been a failure of justice.
11. It seems to us that it is very necessary that the Honorary Magistrates should know that it is their duty to be present throughout the proceedings when they are trying a criminal case. If owing to some unforeseen and unavoidable reason, any of the Honorary Magistrates happens to be absent on any one day he should take care not to take any part in the final deliberations, nor take part in the delivery of judgment. But the trial must of course proceed if the remaining members are sufficient in number to form a quorum. It would be clearly understood that only those members of the Bench who have been present throughout the proceedings and who form a quorum should arrive at their final conclusions to write the judgment and pronounce and sign it.
12. We accordingly accept this reference and setting aside the order convicting the accused, direct that they should be retried. The fines, if paid, should be refunded.