The accused, Upendra Kumar Ghose, an officer of the Society for the Prevention of Cruelty to Animals at Howrah, was tried on three charges under sec. 161, I.P.C, and was on the 19th March 1906 found guilty by Moulvi Abdus Samad, one of the Deputy Magistrates at Howrah and was sentenced to rigorous imprisonment for one month and a fine of Rs. 150 on each of the charges or in the aggregate to rigorous imprisonment for three months and a fine of Rs. 450. He appealed to the Sessions Judge at Hughly who on the 27th April 1906 set aside the conviction and sentence for reasons to which we shall presently refer. The Local Government has appealed from the orders of the Sessions Judge both on questions of law and fact. Of the three charges on which the accused was tried, the 2nd and the 3rd have been abandoned in this Court and we must, as regards these, accept the verdict of acquittal. This appeal is thus confined to the first count only which refers to the receipt by the accused of Rs. 2 on the 2nd September 1905 from a chokra, Coachman (Benod Sardar) as gratification other than legal gratification for forbearing to do an official duty.
In order to understand the questions raised and discussed in the lower Appellate Court and before us, it will be necessary to state briefly the history of the litigation. The District Magistrate of Howrah directed the prosecution and the case came before Mr. Prentice, then the Joint Magistrate of Howrah. The accused objected to the trial on the ground that he was not a public servant. His objection was disallowed and then he moved this Court against the order of the Joint Magistrate and also for a transfer of the case to some other district. This Court upheld the view of the Joint Magistrate as to the accused beings a public servant and declined to transfer the case to another district. In the meantime Mr. Prentice was transferred to another district and the case came before Mr. Adie, his successor. On the 27th February 1906, eight prosecution witnesses were examined-in-chief before Mr. Adie—charges were framed to which the accused pleaded not guilty and he was examined under sec. 364, C.Cr P. The case was then adjourned for the examination of the other witnesses for the prosecution. Mr. Adie was, however, under orders for transfer to another district and on his representation that he would not be able to finish the case before he left the district, the District Magistrate on the same day, the 27th, transferred the case to Moulvi Abdus Samad, one of the Deputy Magistrates at Howrah. The accused then asked for a trial de novo and the case was adjourned to the 2nd March. On that day the accused waived his right to a trial de novo, and one witness for the prosecution was examined, but the cross-examination of all the witnesses for the prosecution was reserved. The case again came on for trial on the 15th March. The case for the prosecution was not yet closed but the accused threw himself on the mercy of the Court and said he would not cross-examine any of the prosecution witnesses and would not also examine any witnesses for the defence. Thereupon the witnesses present in Court were discharged, the trial was considered to be closed and judgment was reversed. The accused, however, did not distinctly plead guilty and Moulvi Abdus Samad also did not record the plea of guilty. On the 19th March judgment was pronounced and the accused was convicted under sec. 161, I.P.C
The conduct of the accused in first demanding and then waiving a trial de novo and throwing himself later on the mercy of the Court abandoning his right to cross-examine the witnesses for the prosecution and not entering upon his defence left the trial incomplete. On the 15th March the Deputy Magistrate should have, when the accused threw himself on the mercy of the Court, asked him if he then pleaded guilty and if he did so should have recorded his plea. If the accused did not plead guilty he ought to have been formally asked to enter upon his defence. The remaining witnesses, if any, for the prosecution should also have been examined.
With regard to the charge with which we are at present concerned, three witnesses were examined only in chief, Darbari Singh, Natobar Sen and Benod Sardar. The accused declined to cross-examine them and unless the testimony of all of them be held to be tainted as being that of accomplices they certainly make out a primâ facie case against the accused. Darbari Singh is a Police constable and he was present when Benod Sardar and Natobar Sen both took part in the transaction of bribery. The two latter may be held to be accomplices but we however fail to see why the constable should be held to be an accomplice merely because he was present, saw the transaction and kept silent. The offence is not cognizable and there was no dereliction from duty on the part of the constable in not giving any information to his superior officers. The depositions of Natobar and Benod though they are accomplices, may justify a conviction with merely a slight degree of corroboration as has been held by this Court in Deonandan Pershad v. Emperor. They were as they say compelled to pay Rs. 2 to the accused and we fully agree with Brett and Stephen, JJ., in holding that the testimony of such persons though they are technically accomplices, has much greater probative force than that of the ordinary accomplices to a criminal act. If no other questions had been raised in the case, we would have considered the evidence on the record sufficient for a conviction of the accused. We cannot accept the view taken by the Sessions Judge as to the value of the evidence afforded by these witnesses.
We are not disposed to place any reliance either on the waiver of the accused as to a de novo trial or as to his conduct on the 15th March, throwing himself on the mercy of the Court. There being no record of the plea of guilty the conduct of the accused should not prejudice him. If again the law requires that there should be a, trial de novo on the transfer of a case from one Magistrate to another the waiver of the accused goes for nothing. In Attorney General of New South Wales v. Bertrand, the Judicial Committee of the Privy Council held that a prisoner on his trial can consent to nothing and this rule as to the effect of a waiver by a prisoner has been consistently followed in India. We may refer to the Queen v. Bishonath Pal(3), The Queen v. Bhola Nath Sen and Queen-Empress v. Murarji Gakuldas. In Queen v. Bhola Nath Sen, Macpherson, J., said—“It is the duty of Magistrates and all Criminal Courts to follow the procedure prescribed by law” and he added that the consent of the accused could not be invoked against irregularity in procedure. In Purmessur Singh v. Soroop Adhikaree, however, the evidence of witnesses given in a previous trial was used in a subsequent trial at the express request of the prisoners instead of the witnesses being examined de novo and notwithstanding this irregularity the Court declined to interfere. But the case was not argued by Counsel in this Court and the decisions we have quoted above were not cited. We cannot rely on this case especially as it has not been followed in any later case. We think the safer rule to adopt in criminal trials is that except where the law expressly permits waiver as sec. 350, Cr. P.C, does, the rights of an accused should not be held to be lost by his consent to a procedure or to admission of evidence which the law does not authorise.
In this view, the only other question that arises is could the accused be convicted by Moulvi Abdus Samad on evidence partly recorded by Mr. Adie and partly recorded by himself.
The decisions of this Court as well as of the other High Courts lay down the general principle that judgment must be delivered by the Judge who has heard the evidence [Queen v. Rughoonath Das(7) Queen v. Khan Mohamed, Queen-Empress v. Radhe(9) and Queen-Empress v. Bashir Khan(10)]. To what extent has this rule been altered or modified by the Code of Criminal Procedure (1898)?
Sec. 350 of the Code expressly refers to the case of one Magistrate succeeding another, the former Magistrate having ceased to exercise jurisdiction in the case. The proviso (a) however speaks of any trial and sub-sec. (2) refers to a matter which does not properly come in as an exception to the rule contained in the first part of the section. The section, it seems to us, is capable of the interpretation that it covers all cases of change of trying Magistrates whether on account of the first trying Magistrate being transferred to another district or on account of a transfer of a case under Chap. XLIV of the Code. But in some of the reported cases a limited construction has been put on the section. It has been held that when a case under trial is transferred under sec. 528, Cr. P.C, the whole proceedings must be commenced de novo. [See Queen v. Khan Mohamed]. The words of sec. 350 of the present Code are slightly different from the words of the similar sections of the Codes of 1872 and 1882. The alteration might have been made with a view to include cases of transfer, but having, regard to the general principle of interpretation that provisos and sub-clauses should be governed by the operative portion of the section and to the fact that the general rule laid down in the earlier rulings have been recognised and approved of on more than one occasion since the amendment was made, we hold that Moulvi Abdus Samad acted irregularly in convicting the accused on evidence partly recorded by Mr. Adie.
We agree with the learned Sessions Judge that the conviction of the accused should be set aside on this ground but as we do not agree with him as to the value of the evidence now on the record, we must direct a de novo trial of the accused.
The evidence as recorded if believed may sustain charges under secs. 161, 342 and 383 of the Indian Penal Code and not merely sec. 161. We therefore direct that the accused be tried on charges under the above sections by some other Magistrate in the district other than Moulvi Abdus Samad.