(Prayer: Case (disposed of on 8-8-1946) referred for the orders of the High Court under S. 438 Crl. P.C., by the Sessions Judge of Kurnool in his letter dated 2-4-1946.)

In C.C. No. 127 of 1945 in the Court of the Additional First Class Magistrate of Kurnool one Vandari Chengalrayudu was charged with an offence in contravention of the Defence of India Rules. The case was taken up for trial and the Tahsildar of Nandyal, Mr. K.M. Ahmed Sahib Bahadur, gave evidence as P.W.

4. After he had given evidence but before the case was closed Mr. Ahmed was appointed Additional First Class Magistrate of Kurnool to succeed the Magistrate who was trying C.C. No. 127 of 1945. As he proceeded with the trial of the case and convicted the accused, the accused appealed to the Sessions Judge of Kurnool and the learned Sessions Judge set aside the conviction on the ground that Mr. Ahmed should not have heard the case after he had himself given evidence in it, and directed that it should be reheard by any other competent Magistrate. Subsequent to the passing of this judgment in appeal, the learned Sessions Judge learnt that Mr. Ahmed had taken up and continued the trial of C.C. No. 127 of 1945 with the consent of the accused. The learned Sessions Judge has now made this reference and asks that, in the circumstances, his order of remand should be set aside and the appeal be restored to the file of his Court for disposal on merits.

In my judgment the reference cannot be accepted. Mr. Ahmed should never have tried the case in view of the fact that he had himself given evidence in it. The impropriety of passing judgment in a case in which he had himself given evidence should have been obvious to him. The consent of the accused cannot validate a trial that was so manifestly improper. The reference is therefore rejected. The order passed on appeal by the learned Sessions Judge in my opinion was the proper order even if the fact of the consent of the accused had been known to him when he passed judgment, and it will stand.