JUDGMENT

Piggott, J. - In this case the three applicants, Mathura, Gangadin and Jagannath, have been convicted of an offence u/s 13 of the Gambling Act, III of 1367. The one and only question raised by this application is, whether the trial of the applicants was or was not vitiated by any illegality or material irregularity in connection with the constitution of the Court which tried them for this offence. The Court in question was a Bench of Honorary Magistrates sitting at the town of Kaimganj. I find that the Local Government, in the exercise of the powers conferred upon it by Section 15 of the Code of Criminal Procedure, had appointed three gentlemen, Mr. Jan Alam Khan, Mr. Nazir Ali Khan and Pandit Chaube Peare Lal, to be a Bench of Magistrates exercising jurisdiction in this particular place. It is not denied that the offence of which the applicants were tried was one within the jurisdiction of the aforesaid Bench, or that the sentence passed was one within the competence of the said Court. The point taken is as follows.

2. There were three hearings of this case in the trial Court. On December the 5th, 1917, the case was taken up by Mr. Nazir Ali Khan and Mr. Jan Alam Khan and the evidence for the prosecution was recorded. On the 16th of December 1917 when the Court resumed its sitting for the trial of this case, there were present on the Bench Mr. Jan Alam Khan and Pandit. Chaube Peary Lal. The accused were asked to state whether they desired this Bench to recommence the trial de novo, or rather, I should say, that they were asked whether they would like to have the trial adjourned until the same two Magistrates who had commenced the trial should find it convenient to sit together again. The precaution was taken of obtaining from the accused a written petition, in which they stated that they had no objection, to the hearing of the case proceeding before the Bench as then constituted and added that they particularly desired that there should be no delay in the disposal of the case. I understand that at the end of the hearing of December the 16th, 1917, the evidence had been completely taken, the accused had been examined and arguments bad been heard. Nothing was left to be done except for the Court to pronounce judgment. The record does not make it quite clear why, under these circumstances, an adjournment of five days was ordered, but I am inclined to suspect that this was done under a bona fide belief that the proceedings would be more regular if judgment in the case were pronounced by the same two members of the Bench of Magistrates who had commenced the trial. It is admitted that on the 21st of December no objection was taken on behalf of the accused persons to the action of Mr. Nazir Ali Khan and Mr. Jan Alam Khan in proceeding to pass judgment. As bearing on the legality of these proceedings it requires to be noted further that, u/s 16 of the Code of Criminal Procedure, the Local Government, or subject to the control of the Local Government the District Magistrate, is empowered to make rules for the guidance of the Magistrates' Benches in respect of various subjects, including amongst others the constitution of the Bench for conducting trials. The Local Government of these Provinces has issued for general information a set of draft rules and these have " been generally adopted under the authority of the Magistrates of various districts. It is not suggested that these rules are not in force in the district of Farrukhabad. Indeed I understand from the orders of the District Magistrate and of the learned Sessions Judge on this record that the said rules are undoubtedly in force. Now under the second of these rules, it is laid down in respect of a Bench consisting of not more than three members, that any two of these shall form a quorum. In the next rule it is provided that, if the Bench holds an adjourned sitting for the disposal of a part heard case, and the members at the adjourned sessions are not the same as sat at t