Judgment

SARKAR, J. : The appellant Payare Lal was the Tehsildar of Patiala. He and Bishan Chand, a Patwar clerk of the Tehsil Office, were prosecuted for offences under S. 5(2) of the Prevention of Corruption Act, 1947. The Criminal Law Amendment Act, 1952 (Act XLVI of 1952), to which it will be convenient hereafter to refer as the Act, required the trial to be held by a special Judge appointed under it and in accordance with certain provisions of the Code of Criminal Procedure mentioned in S. 8 of the Act. The principal question in this appeal turns on the construction of sub-sec.(1) of this section which we will later set out.

2. The trial commenced before S. Narinder Singh the special Judge, Patiala. He heard the evidence but before he could deliver a judgment he was transferred and was succeeded by S. Jagjit Singh. S. Jagjit Singh did not recall the witnesses and hear the evidence over again, but proceeded without any objection from either side, with the trial from the stage at which his predecessor had left it and having heard the arguments of the advocates for the parties, delivered his judgment convicting both, the accused of the offences with which they had been charged and passed certain sentences on them.

3. The accused appealed against their conviction to the High Court of Punjab. The appeals came to be heard by Mehar Singh J. who, though no point had been taken by the accused, himself felt considerable difficulty as to whether S. Jagjit Singh had the power to decide the case on the evidence recorded by his predecessor and referred the matter to a larger bench taking the view that if the course followed was defective, the defect would be one of jurisdiction of the Court and could not be cured by the consent of parties.

4. The case was thereupon heard by a bench of that High Court constituted by Gurnam Singh and Mehar Singh JJ. who took different views. Gurnam Singh J. held that S. 350 of the Code applied to the trial before a special Judge in view of S. 8(1) of the Act and under the terms of S. 350, which we will later set out, S. Jagjit Singh was entitled to proceed on the evidence recorded by his predecessors. Narinder Singh, while Mehar Singh, J. was of the opinion that S. 8(1) of the Act did not make S. 350 of that Code applicable to such a trial. He also held that what S. Jagjit Singh had done was not a matter of mere irregularity curable under S. 537 of the Code. The matter was then referred to Passey J. who agreed with Gurnam Singh J. On the question of S. 537 of the Code, Gurnam Singh and Passey JJ. expressed no opinion in the view that they had taken of S. 8(1) of the Act.

5. The appeals were thereafter heard on the merits by Tek Chand J. who upheld the conviction of the appellant but reduced the sentence passed on him. He, however, acquitted the other accused Bishan Chand, giving him the benefit of doubt. The appellant has now come up to this Court in further appeal with special leave. There is no appeal by the State against the acquittal of Bishan Chand.

6. There is no controversy that the general principle of law is that a judge or magistrate can decide a case only on evidence taken by him. Section 350 of the Code is a statutory departure from this principle. That section so far as material was at the date S. Jagjit Singh decided the case in these terms :

S. 350. Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself or he may resummon the witnesses and recommence the inquiry or trial.

It is only if this provision was available to S. Jagjit Singh that the course taken by him can be supported.

7. As we have said earlier, S. 8 of the Act makes certain provisions of the Code a