JUDGMENT

Srivastava, J - Five persons, Sat Narain, Kunwar Sen, Babu Lal, K.K. Kapani and Daulat Ram, were prosecuted for an offence of criminal conspiracy to start a bogus bank under the name of the Great Eastern Bank, Ltd., with a view to cheat persons who may have had occasion to deal with it, under Section 120-B read with. Section 420, I.P.C., for some specific acts of cheating in furtherance of the said conspiracy under Section 420, I.P.C., and for forgery under Sections 465 and 471, I.P.C. They were tried by Mr. S.M. Zahid, a Magistrate of the First Class, Lucknow. They were all convicted under Section 120-B/420, I.P.C., and some of them also under one or other or both of the other sections, Kunwar Sen, Sat Narain, Babu Lal and Daulat Ram appealed against their convictions and sentences to the Session Judge of Lucknow. The result of his findings was that he sustained the conviction of Kunwar Sen under Section 120-B/420 and under Section 420, but reduced the sentence under Section 120-B/420 from one of two years' rigorous imprisonment and a fine of Rs. 500 to rigorous imprisonment for one year and nine months only. The sentence of one year's rigorous imprisonment under each of the two charges under Section 420, I.P.C., passed against him by the Magistrate was maintained. The Sessions Judge set aside the convictions of Babu Lal on the two charges under Section 420, but dismissed his appeal in respect of his conviction under Sections 120-B/420 and 465/471, I.P.C. He also maintained the sentence of eighteen months' rigorous imprisonment and a fine of Rs. 200 passed against him under Section 120-B/420 and the sentence of one year's rigorous imprisonment for the two offences under Section 465/471, I.P.C. In the case of Daulat Ram who was convicted by the Magistrate only under Section 120-B/420, I.P.C., and sentenced to six months' rigorous imprisonment, the learned Sessions Judge dismissed the appeal and upheld the conviction as well as the sentence. It, is not necessary for me to mention the sentences passed on the other two accused Kapani and Sat Narain because their cases are not before me.

2. Kunwar Sen, Babu Lal and Daulat Ram have applied to this Court in revision. The first contention which is common to all the three applications is that the procedure adopted by the trying Magistrate was in contravention of the provisions of Section 350, Criminal P.C. and that the convictions are liable to be set aside on this ground. It is necessary to state a few facts in connection with this plea. The trial of the accused started in the Court of Mr. Muhammad Hasan. On his transfer from the district after some of the prosecution evidence had been recorded and charge sheets had been framed, the case was transferred to the file of his successor, Mr. S.M. Zahid. When the case was taken up by the latter on 9th April 1931, all the accused except Kunwar Sen stated that the proceedings before him should be started from the stage at which they were left by his predecessor, but Kunwar Sen stated that he wanted fresh proceedings (az sare nau karrwai). The Magistrate accepted this request and proceeded to record the statements of the prosecution witnesses afresh. On 25th June 1931 the order sheet shows that all the accused stated to the Magistrate that they did not want one of the prosecution witnesses who had already been examined by his predecessor to be examined again nor did they want to cross-examine him further. They agreed that his statement previously recorded may be used in the case. On the same date the Magistrate by. his English order decided that the former charges framed by his predecessor should stand. In the course of his order he observed that the accused had only recalled the witnesses under Section 350(1)(a), Criminal P.C. In his final judgment also he remarked that he did not accede to the accused's request that fresh charges should be framed because he was of opinion that under Section 350, Civil P.C., the accused are only ent