Report No. 41

24.78. Section 350(2).-

At the other end are "summary trials", which again should be decided quickly and no question of a "par.-heard case" should normally arise. Also, the record of evidence in a summary trial is scanty;1 and in certain cases may be virtually no.-existent. In these cases too, the rule in section 350 ought not to apply.2 We propose that section 350(2) should be amended to read, "Nothing in this section applies to summary trials to cases in which etc."

1. See section 263.

2. For a review of cas.-law, see Surat Municipality v. Nagendra, AIR 1953 Born 29.

24.79. Section 350A.-

Section 350A deals with Benches of Magistrates, and provides that the judgment of a Bench will not be affected by any change in the constitution of the Bench, if it is constituted "in accordance with sections 15 and 16" and the "Magistrates constituting it have been present on the Bench throughout the proceedings"

The language used here tends to obscure the meaning of the provision1, and the Courts have at times complained2 of the obscurity.

The requirement that the "Magistrate.-meaning "all the Magistrates" constituting the Benc.-should have been present throughout the proceedings, greatly reduces the usefulness of the provision. The cases handled by Benches of Magistrates are not important, and we think it should be quite sufficient if one of the Magistrates has been present and heard all the proceedings, so that the other members of the Bench (even if not present throughout) can be properly advised by him. We, therefore, suggest that the scope of section 350A should be widened, and all decisions by a Bench of Magistrates should be valid so long as one of the Magistrates deciding the case has heard the whole evidence.

Section 350A speaks of "order or judgment". Obviously, "judgment", which is the more important of the two, should be mentioned first.

In the light of the above discussion, section 350A may be amended to read as follows.-

"350A. Changes in constitution of Benches.-No judgment or order of a Bench of Magistrates shall be invalid by reason only of a change having occurred in the constitution of the Bench, in any case in which the Bench by which such judgment or order is passed is duly constituted under sections 15 and 16, and at least one of the Magistrates constituting the Bench by which the judgment or order was delivered has been present on the Bench throughout the proceedings."

1. See Harnarain v. Emp., AIR 1943 All 20; Jai Ram v. State, AIR 1953 All 137; Kali Charan v. Emp., AIR 1955 All 711.

2. Cf. Dasrath Rai v. Emp., ILR 56 All 599: AIR 1934 All 144 (146) (per Sulaiman C.J.).

24.80. Section 351 limited to offenders in courts.-

It happens sometimes, though not very often, that a Magistrate hearing a case against certain accused finds from the evidence that some person, other than the accused before him, is also concerned in that very offence or in a connected offence. It is only proper that the Magistrate should have the power to call and join him in the proceedings. Section 351 provides for such a situation, but only if that person happens to be attending the Court. He can then be detained and proceeded against. There is no express provision in section 351 for summoning such a person if he is not present in Court. Such a provision would make section 351 fairly comprehensive, and we think it proper to expressly provide for that situation.

25.81. How is cognizance taken.-

Section 351 assumes that the Magistrate proceeding under it has the power of taking cognizance of the new case. It does not, however, say in what manner cognizance is taken by the Magistrate. The modes of taking cognizance are mentioned in section 190, and are, apparently, exhaustive. The question is, whether against the newly added accused, cognizance will be supposed to have been taken on the Magistrate's own information under section 190(1)(c), or only in the manner in which cognizance was first taken of the offence against the other accused.

In concrete terms, if the original case was instituted on a police report, i.e. under section 190(1)(b), will cognizance against the new accused be supposed to have been taken in the same manner, or under section 190(1)(c)? The question is important, because the methods of enquiry and trial in the two cases differ1. About the true position under the existing law, there has been difference of opinion, and we think it should be made clear.

It seems to us that the main purpose of this particular provision is, that the whole case against all known suspects should be proceeded with expeditiously, and convenience requires that cognizance against the newly added accused should be taken in the same manner as against the other accused. We, therefore, propose to r.-cast section 351 making it comprehensive and providing that there will be no difference in the mode of taking cognizance if a new person is added as an accused during the proceedings. It is, of course, necessary (as is already provided) that in such a situation the evidence must be r.-heard in the presence of the newly added accused.

1. See sections 207, 207A, 251 and 251A.

24.82. Offences to be indicated.-

The offence for which the newly added accused can be tried is not indicated in precise terms in the section. Obviously, that offence should be connected with the one for which the original accused is under trial. To bring that out, a small verbal amendment is recommended.

24.83. Amendment of section 351 recommended.-

Section 351 should, therefore, be amended to read as follows.-

"351. Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of an inquiry into or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is attending the Court, although not under arrest or upon a summons, he may be detained by such Court for the purpose of the inquiry into or trial of the offence which he appears to have committed.

(3) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(4) Where the Court proceeds against any person under su.-section (1), the.-

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses r.-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

24.84. Section 352.-

Section 352 contains the healthy rule that Criminal Courts should ordinarily be open to the public, and no change is to be suggested in that rule.