UNIYAL, J.

( 1 ) THIS reference raises an important question with regard to the true scope and effect of Section 116 (d) Cr. P. C. (Amendment) Act XXVI of 1955, hereinafter referred to as the Amending Act.

( 2 ) THE facts are briefly stated as follows. The appellant was prosecuted under Sections 409 and 477-A I. P. C. The trial of the accused commenced on 17-10-55 in the court of Sri Onkar Singh, sessions Judge of Pilibhit, with the aid of assessors. After a substantial part of the prosecution evidence had been recorded the accused came up in Revision to the High Court and obtained the stay of further proceedings in the case. The Revision was dismissed sometime in July 1959 and the case was then sent back to the Sessions Judge for trial. During the pendency of the said revision, however, two events had. occurred; one was the coming into force on. 2-1-50 of the cr. P. C. (Amendment) Act XXVI of 1955, and the other was the posting of Sri Visheshwari Pd. Mathur as Sessions Judge in place of Sri Onkar Singh since transferred. This time the trial of the accused commenced before the new Sessions Judge without the aid of assessors in accordance with the Amending Act. The Sessions Judge eventually convicted the appellant of the offences charged. The accused then filed an appeal to the High Court from his conviction and sentence. It was contended before Bishambhar Dayal, J. who heard the appeal, that the trial of the accused should have been conducted with the aid of assessors. On behalf of the appellant reliance was placed on Section 116 (d) of the Amending Act and it wag urged that the entire proceedings before the Sessions Judge ending in the conviction of the appellant were wholly void.

( 3 ) B. Dayal, J. considered that the question involved in the case was of considerable importance and, therefore, referred the following question for consideration by a Division Bench.

"whether in the circumstances of this case the present trial held without the aid of assessors was vitiated?"

In order to appreciate the controversy it is necessary to refer to the provisions of Section 116 of the Amending Act. Section 116 runs as follows :"notwithstanding that all or any of the provisions of this Act have come into force in any State, (a) The provisions of Section 14, or Section 30 or Section 145 or Section 146 of the principal act as amended by this Act shall not apply to or affect any trial or other proceeding which, on the date of such commencement, is pending before any Magistrate and every such trial or other proceeding shall be continued and disposed of as if this Act had not been passed; (b) the provisions of Section 406 or Section 408 or Section 409 of the principal Act as amended by this Act shall not apply to, or affect any appeal which on the date of such commencement is pending beforethe District Magistrate or any Magistrate of the First Class empowered by the state Government to hear such, appeal and every such appeal shall, notwithstanding the repeal of the first provision of Section 406 or of Section 407 of the principal Act, be heard and disposed of as if this Act had not been passed; (c) the provisions of Clause (w) of Section 4 or Section 207-A or Section 251-A or Section 260 of the principal Act as amended by this Act shall not apply to or affect any inquiry or trial before a Magistrate in which the Magistrate has begun to record evidence prior to the date of such commencement and which is pending on that date, and every such inquiry or trial shall be continued and disposed of as if this Act had not been passed; (d) the provisions of Ch. XXIII of the principal Act as amended by this Act shall not apply to or affect any trial before a court of Session either by Jury or with the aid of assessors in which the court of Session has begun to record evidence prior to the date of such commencement and which is pending on that date, and every such trial shall be continued and disposed of as if this act had not been passed; but save, as afo