Payare Lal vs State Of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 240 of 1960

Decision Date: 30 August 1961

Coram: A.K. Sarkar, Bhuvneshwar P. Sinha, J.R. Mudholkar

In the matter titled Payare Lal versus State of Punjab, the judgment was delivered by the Supreme Court of India on the thirtieth day of August, 1961. The judgment was authored by Justice A K Sarkar, who was seated on a bench together with Justice Bhuvneshwar P Sinha, who is identified as the Chief Justice, and Justice J R Mudholkar. The parties before the Court were identified as the petitioner, Payare Lal, and the respondent, the State of Punjab. The official citation of the decision appears in law reports as 1962 AIR 690 and 1962 SCR Supl. (3) 328. Additional citator references note the case as R 1962 SC1198 (30) and D 1977 SC1066 (30). The judgment discusses statutory provisions relating to criminal trial procedure, in particular the transfer of a special judge, the capacity of a successor to try a case on evidence partly recorded by the predecessor, the question of whether a special judge qualifies as a magistrate, and the issue of competency and its possible cure. The statutory framework cited includes the Criminal Law Amendment Act of 1952, specifically section 8 with its subsections (1) and (3), and the Code of Criminal Procedure of 1898, particularly sections 251 to 259, 350 and 537.

The headnote of the decision records that the appellant together with another accused were prosecuted under section 5(2) of the Prevention of Corruption Act, 1947. The trial began before a special judge who heard the evidentiary material, but before the special judge could render a judgment he was transferred and a second special judge succeeded him. The successor judge did not recall the witnesses, did not rehear the evidence, and proceeded with the trial from the point at which his predecessor had left, without any objection being raised by either side. Both accused were subsequently convicted. On appeal, the Punjab High Court held that section 350 of the Code of Criminal Procedure applied to the trial before a special judge, relying upon section 8(1) of the Criminal Law Amendment Act, 1952, and concluded that the succeeding special judge was entitled to continue the trial on the basis of the evidence recorded by his predecessor. The legal controversy centered on whether section 330 of the Code of Criminal Procedure was applicable to a special judge under subsection (1) of section 8 of the 1952 Amendment Act, given that it was not applicable under subsection (3) of the same Act. The question therefore was what the phrase “the procedure prescribed by the court … for the trial of warrant cases by magistrate” meant in subsection (1) of section 8, and whether section 350 of the Code of Criminal Procedure constituted one of the procedures contemplated by that phrase. The Court noted that the Criminal Law Amendment Act had subsequently been amended to expressly provide that section 350 of the Code applied to proceedings before a special judge, but observed that the amendment did not govern the present proceedings because the impugned part of the trial had been completed before the amendment took effect. The Court held that the 1952 Amendment Act did not intend for section 350 of the Code of Criminal Procedure to be regarded as a rule of procedure prescribed for the trial of warrant cases by a special judge, because a special judge was not a magistrate within the meaning of the Act and the Act, prior to amendment, did not deem him to be such. Accordingly, the Act, by using the words “procedure prescribed by the Code … for the trial of warrant cases by magistrate,” referred only to sections 251 to 259 of the Code, which are expressly identified as containing the procedure specified for magistrates in warrant cases, and it did not contemplate section 350 as part of that prescribed procedure.

Section 259 of the Criminal Procedure Code was expressly referred to in the statute as containing the procedure that was specified for the trials of warrant cases by a magistrate, and the provision did not contemplate section 350 of the Code as a procedure that was so prescribed.

The Court further held that where a case suffers from a lack of competency rather than a mere irregularity, the remedial provisions of section 537 of the Code of Criminal Procedure could not be invoked. Section 537 could not be used to transform a proceeding that was incompetent into a competent one.

It was also held that an accused person has the right to have his case decided by a judge who has heard the entire case. The Court emphasized that only very clear statutory language could be employed to deprive an accused of this important and well‑established right.

In the present matter, the succeeding special judge possessed no legal authority to continue the trial from the point at which his predecessor, who was the earlier special judge, had left it. Consequently, the conviction of the appellant could not be sustained because the succeeding judge had not himself heard the evidence. The proceedings before the succeeding special judge were therefore clearly incompetent. There had been no proper trial of the case, and the Court directed that a proper trial should be held.

The Court referred to the authorities in In re‑Vaidyanatha Iyer (1954) 1 M.L.J. 294, Pulukuri Kotayya v. King Emperor (1947) L.R. 74 I A. 65, Kimbray v. Dapper (1868) 3 Q.B. 160, and In re‑Fernandez (1958) 11 M.L.J. 294, which were approved as relevant precedents.

The judgment concerned a criminal appellate jurisdiction in Criminal Appeal No. 240 of 1960, which was filed by special leave against the judgment and order dated 25 November 1958 of the Punjab High Court in Criminal Appeal No. 114 of 1954. Counsel for the appellant comprised Jai Gopal Sethi, C.L. Sareen and R.L. Kohli, while counsel for the respondent were N.S. Bindra, R.H. Dhebar and D. Gupta. The judgment was delivered on 30 August 1961 by Justice Sarkar.

The appellant, Payare Lal, who held the position of Tehsildar of Patiala, together with Bishan Chand, a patwar clerk of the Tehsil Office, were prosecuted under section 5(2) of the Prevention of Corruption Act, 1947. The Criminal Law Amendment Act, 1952 (Act XLVI of 1952), hereinafter referred to as “the Act”, mandated that the trial be conducted by a special judge appointed under the Act and in accordance with the provisions of the Code of Criminal Procedure mentioned in section 8 of the Act.

The principal question on appeal turned on the construction of sub‑section (1) of that section, which the Court indicated would be addressed later. The trial had commenced before Special Judge S. Narinder Singh of Patiala, who heard the evidence but was transferred before delivering a judgment. He was succeeded by Special Judge S. Jagjit Singh, who did not recall the witnesses nor rehear the evidence, but proceeded, without objection from either side, from the stage at which his predecessor had left the trial and after hearing the arguments of counsel for the parties.

The special Judge, after hearing arguments from both sides, delivered a judgment that convicted both accused persons of the offences with which they had been charged and imposed sentences on each of them. Both accused then appealed their convictions to the High Court of Punjab. The appeals were initially heard by Justice Mehar Singh, who, although the accused had raised no specific point, felt a serious difficulty in determining whether Justice Jagjit Singh possessed the authority to decide the case based solely on the evidence recorded by his predecessor, Justice Narinder Singh. Justice Mehar Singh therefore referred the question to a larger bench, expressing the view that if the procedure followed was defective, the defect would be one of jurisdiction that could not be cured merely by the consent of the parties. The matter was subsequently heard by a bench of the High Court consisting of Justices Gurnam Singh and Mehar Singh. The two judges arrived at divergent conclusions. Justice Gurnam Singh held that Section 350 of the Code of Criminal Procedure applied to a trial before a special judge in view of Section 8(1) of the Criminal Law Amendment Act, and that under the terms of Section 350, Justice Jagjit Singh was entitled to proceed on the evidence recorded by his predecessor, Justice Narinder Singh. In contrast, Justice Mehar Singh opined that Section 8(1) of the Act did not make Section 350 of the Code applicable to such a trial and further held that the actions of Justice Jagjit Singh did not amount merely to a curable irregularity under Section 537 of the Code. The issue was then referred to Justice Passey, who agreed with Justice Gurnam Singh. On the question of Section 537, Justices Gurnam Singh and Passey did not express an opinion, as they had already formed a view on Section 8(1) of the Act. The appeals were thereafter heard on their merits by Justice Tek Chand, who upheld the conviction of the appellant but reduced his sentence, while acquitting the other accused, Bishan Chand, on the basis of doubt. The appellant has now sought further relief before this Court by obtaining special leave to appeal. No appeal has been filed by the State against the acquittal of Bishan Chand. There is no controversy that the general principle of law is that a judge or magistrate may decide a case only on evidence taken by him. Section 350 of the Code of Criminal Procedure represents a statutory departure from that principle. At the time Justice Jagjit Singh decided the case, Section 350 read as follows:

Section 350. Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or on evidence partly recorded by his predecessor and partly recorded by himself, or may recall the witnesses and recommence the inquiry or trial.

In this case the Court observed that the provision could be relied upon by S. Jagjit Singh only because it was available to him at the time of his decision. The Court then turned to Section 8 of the Act, which incorporates certain provisions of the Code of Criminal Procedure into proceedings before a special Judge. The pivotal question was whether Section 350 of the Code formed part of those incorporated provisions. To answer this, the Court said it must interpret subsections (1) and (3) of Section 8, and therefore reproduced the relevant text. Subsection (1) states that a special Judge may take cognizance of offences without the accused being committed to him for trial, and that, in trying the accused, the Judge shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 for the trial of warrant cases by magistrates. Subsection (3) adds that, except as provided in subsection (1), the provisions of the Code, to the extent they are not inconsistent with the Act, shall apply to proceedings before a special Judge, and for the purpose of those provisions the Court of the special Judge shall be deemed to be a Court of session trying cases without a jury or assessors.

In substance, the Court explained, these subsections mean that a special Judge must adopt the procedural rules set out in the Code for trial of warrant cases by magistrates, while, apart from that limited area, the Judge is to apply the provisions of the Code that would normally govern a Court of session, subject to qualifications that do not affect the present issue. The Court noted that Section 350 of the Code is limited to magistrates and does not apply to a Court of session; consequently, it cannot be read into the special Judge’s jurisdiction by subsection (3), which only imports provisions that would apply to a Court of session. The remaining controversy was whether Section 350 could be brought within the special Judge’s jurisdiction by virtue of subsection (1). If that were so, the Court must apply Section 350 notwithstanding the exclusion in subsection (3), because subsection (3) is expressly saved by the words “save as provided in subsection (1)”. The Court then asked what the phrase “the procedure prescribed by the Code … for the trial of warrant cases by magistrates” actually means in subsection (1). Specifically, it considered whether Section 350 constitutes one of those procedural rules. The Court also pointed out that, after the judgment of S. Jagjit Singh, the Act was amended to expressly state that Section 350 applies to proceedings before a special Judge. However, the Court held that this amendment could not govern the proceedings before S. Jagjit Singh, and therefore the issue of applicability of Section 350 to a special Judge remained open for determination.

In determining the appeal of Singh, the Court held that the matter must be decided without taking account of the amendment that was introduced after the original judgment. The Court recalled an earlier decision of the Madras High Court in In re Vaidyanatha Iyer, reported as (1954) 1 M.L.J. 15; A.I.R. (1954) Mad. 350, wherein it was held that section 350 of the Code of Criminal Procedure prescribed a rule of procedure for the trial of warrant cases, as referred to in section 8(1) of the Punjab Special Courts Act. That judgment appeared to be the sole reported authority supporting the view that section 350 formed part of the prescribed procedure. The Court noted, however, that every other decision brought to its attention adopted the opposite conclusion. In particular, the Court mentioned a later Full‑Bench judgment of the Madras High Court in In re Fernandez, reported as (1958) 11 M.L.J. 294, which expressly held that section 350 of the Code did not apply to a special Judge and consequently overruled the earlier Vaidyanatha Iyer decision. The authorities, therefore, indicated that the prevailing view was that section 350, although a provision applicable to all magistrates and thus to a magistrate trying a warrant case, could not be read as part of the procedure prescribed by the Act for special Judges. The Court emphasized that the right of an accused to have his case decided by a judge who has heard the entire proceeding is a well‑established principle. It agreed with the reasoning in Fernandez that any departure from this principle required unmistakably clear wording in the statute, wording which the Court did not find in the present provision. Turning to the language of section 8(1) of the Act, the Court observed that the phrase “procedure prescribed by the Code for the trial of warrant cases by magistrates” should be understood in the context of the Code itself. Chapter XXI of the Code, titled “Trial of Warrant Cases by Magistrates,” comprises sections 251 to 259. Section 251, for example, directs that in the trial of warrant cases the magistrate shall follow the procedure laid down in section 251A when the case is instituted on a police report, and otherwise follow the procedure contained in the remaining provisions of that chapter. Consequently, the Code expressly designates sections 251 to 259 as the procedure for warrant cases. It was therefore legitimate, the Court held, to interpret the Act’s reference to “procedure prescribed by the Code” as referring solely to those sections and not to section 350, even though section 350 is applicable to magistrates in general. The Court concluded that the expression “procedure prescribed by the Code… for the trial of warrant cases by magistrates” does not encompass a procedure that extends beyond the specific provisions of sections 251 to 259.

The Court observed that section 350 of the Code could not be treated as a provision that magistrates were free to follow in every type of case. Section 350 was situated in a chapter dealing with general provisions applicable to inquiries and trials, and it was not among the sections specifically prescribed for warrant cases, namely sections 251 to 259. Consequently, the Court held that the language of section 350, when read literally, could not be extended to proceedings before a special Judge without distorting its meaning. The provision expressly applied only in situations where one magistrate succeeded another, prescribing the powers that the succeeding magistrate could exercise. When the Court imagined a scenario in which a special Judge succeeded another special Judge, it found that the statutory language barred the application of section 350 because the predecessor was not a magistrate. Section 8(1) of the Act required a special Judge merely to follow the procedure for the trial of a warrant case and did not create a fictional status of magistrate for the predecessor. The Court noted that a later amendment to the Act expressly declared that, for the purpose of applying section 350, a special Judge shall be deemed to be a magistrate. That legislative provision indicated that, without such a deemed status, the application of section 350 to special Judge proceedings would generate practical difficulties or anomalies. Nevertheless, the Court concluded that the Act, as it existed before the amendment, did not intend to make section 350 a general rule of procedure for special Judges in warrant cases. Accordingly, the Court preferred the earlier opinion expressed by Justice Mehar Singh, which held that section 350 was unavailable when one special Judge succeeded another.

Applying this interpretation, the Court held that the special Judge identified as S. Jagjit Singh possessed no legal authority to continue the trial from the point where the previous special Judge, S. Narinder Singh, had left it. The conviction rendered by S. Jagjit Singh was therefore unsupported because he had not personally examined the evidence presented in the case. The Court described the proceedings before S. Jagjit Singh as clearly incompetent, asserting that they went beyond a simple procedural irregularity. It rejected the argument that the defect amounted only to an irregularity that could be cured under section 537 of the Code. The Court noted that section 537 permitted the remedy of an irregularity only when the trial had been conducted substantially in accordance with the Code, which was not the case here. Citing the Privy Council decision in Pulukuri Kotayyam v. King Emperor, the Court emphasized that a trial conducted in a manner different from that prescribed by the Code was fundamentally defective and could not be remedied by invoking section 537. Therefore, the Court concluded that the conviction of the appellant could not be sustained, and the proceedings before the special Judge were void. Accordingly, the order of conviction was set aside and the matter was remanded for a proper trial before a duly authorized magistrate.

Referring to the authority in N. A. Subramania Iyer’s case, 1901 L.R. 28 I.A. 257, the Court explained that when a trial is conducted in a manner that is not in accordance with the Code, the trial is considered bad and the question of curing an irregularity does not arise. However, if the trial is carried out substantially in the way prescribed by the Code and only a minor irregularity occurs during that conduct, then the irregularity may be cured under section 537, even though the irregularity may involve a breach of one or more comprehensive provisions of the Code.

The Court observed that the present case falls within the first category identified by the Privy Council. It is not merely an irregularity but a complete lack of competency. Apart from section 350, which the Court has already held to be inapplicable to the facts before it, the Code provides no provision for a trial of the sort that was attempted. The trial violated the fundamental principle of law that the Code recognises, a principle that is evident from the Code’s own exception to that principle contained in section 350. Consequently, the Court concluded that section 537 cannot be invoked to transform an incompetent trial into a competent one. There has been no proper trial of the case, and a proper trial must be conducted.

The appellant contended that the Court should not order a fresh trial but should decide the matter on the evidence already on record. The Court found this argument surprising, especially since it had already accepted that no proper trial had taken place. Without a proper trial, the Court could not examine the evidence on file. The Court then turned to the amendment of the Act that expressly made section 350 applicable to proceedings before a special Judge. That amendment was enacted long after Special Judge S. Jagjit Singh had rendered his decision and was not expressly made retrospective. The prosecutor argued that because the amendment concerned a procedural provision, it must be applied retrospectively, thereby removing any exception to the actions of S. Jagjit Singh. Assuming that section 350 is merely a rule of procedure, the argument would lead to the presumption that it applies to all pending and future actions, as suggested in Kimbray v. Draper (1) [1868] 3 Q.B. 100. The Court held that such a retrospective application does not support the prosecutor’s position. Nor does the amendment justify refusing a fresh trial on the basis that the new special Judge might be permitted to rely on evidence recorded by S. Narinder Singh. Whether the new Judge may rely on that evidence depends on further considerations, not addressed here.

The Court examined whether the amended Act would be applicable to proceedings that had been commenced prior to the amendment. It observed that the portion of the proceedings that was challenged had been concluded before the amendment came into force. On the specific question of whether the amendment should operate retrospectively, the Court expressly declined to express any opinion. The Court further noted that, under section 350 of the Code as it presently stands, a succeeding magistrate possesses the power to summon again and to examine a witness further, citing the authority (1) [1868] 3 Q.B. 100. liar. The Court stated that it could not speculate on what a special Judge, who might be required to try the case anew, would consider appropriate to do if section 350 were to be applied to the proceedings before him. Considering all these factors, the Court concluded that it was appropriate to remit the matter for a fresh trial. Accordingly, the Court allowed the appeal, set aside the conviction of the appellant and the sentence that had been imposed. The matter was ordered by the Court to be sent back for a retrial in accordance with the applicable law. Consequently, the appeal was allowed in its entirety.