Macpherson and Banerjee, JJ.
1. This case has been decided by a Bench consisting of three Magistrates, only two of whom heard the entire evidence. The third Magistrate was absent on the first day of the trial. We think it is clear that only those Magistrates who have heard all the evidence can decide the case; and although two of the Magistrates who took part in this decision have heard the evidence throughout, it is impossible to say to what extent their opinion may not have been influenced by the third Magistrate, who had only heard a portion of the evidence.
2. There is no provision of law which provides for a change in the constitution of Benches of Magistrates, and in the absence of any such provision we must hold that only those Magistrates who have heard the whole of the evidence can decide the case. Section 350 of the Code of Criminal Procedure provides that under certain circumstances a Magistrate who has not heard the evidence may decide the case; but that section cannot apply to cases of this description.
3. The view which we take is consistent with that which was taken in the cases of Sambhu Nath Sarkar v. Ram Kamal Guha 13 C.L.R. 212 and Hardwar Singh v. Khega Ojha I.L.R. 20 Cal. 870.
4. We accordingly set aside the conviction and order the release of the petitioner. The fine, if realized, will be refunded.