Mahadeo Apparao Wale v. Isamiya Abdul Aziz

Chainani, J.:— The petitioner had filed a complaint under ss. 352 and 447, Indian Penal Code, against the respondents in the Court of the Judicial Magistrate, First Class, Mohol. The evidence in the case was recorded by Mr. S.B Joglekar. Thereafter he wrote his judgment and fixed the hearing on May 29, 1957, for delivering judgment. On that day the accused respondents were absent at the time when the judgment was to be pronounced. Mr. Joglekar, therefore, did not deliver the judgment and directed warrants to be issued for the arrest of the accused. Thereafter, he was succeeded by Mr. L.D Shinde, who signed the judgment written by Mr. Joglekar and pronounced it on July 30, 1957. By this judgment the accused were convicted and sentenced. They appealed against their convictions and the sentences passed upon them to the Sessions Court. The Additional Sessions Judge, who heard the appeal, came to the conclusion that Mr. Shinde had not adopted the judgment written by his predecessor as his own and that consequently he could not pronounce that judgment. In his opinion, the convictions of the accused were, therefore, illegal. Accordingly, he set aside their convictions and sentences and directed the case to be retried. Against that order, the present revision application has been filed.

2. Mr. Sali, who appears on behalf of the petitioner, has urged that Mr. Shinde was competent to pronounce the judgment, which had been written by his predecessor. He has relied on Chandika Prasad v. Emperor . [1925] A.I.R Oudh 62. in which the learned Additional Judicial Commissioner observed that under s. 350, Criminal Procedure Code, the succeeding magistrate is entitled to act on the evidence recorded by his predecessor and also on the notes left by his predecessor, even if those notes took the form of a judgment. According to these observations, therefore, a succeeding magistrate can adopt the judgment written by his predecessor as his own and thereafter pronounce it. That is not the position in the present case. The learned Additional Sessions Judge has pointed out that there is nothing on the record to show that Mr. Shinde had applied his mind to the evidence in the case and then adopted the judgment of Mr. Joglekar as his own. On the other hand, from the record it appears that he merely signed the judgment written by Mr. Joglekar at the time when he pronounced it.

3. The other case, which has been relied on by Mr. Sali, is Re Savarimuthu Pillai. In that case the succeeding magistrate had ordered de novo trial, even though his predecessor had left behind a judgment written by him. The District Magistrate made a reference to the High Court stating that the succeeding magistrate was bound to pronounce his predecessor's judgment and recommended that he should be ordered to do so and that his order for a de novo trial should be set aside. This reference was not accepted. Mr. Sali relies on an observation in the judgment at page 109,

“…In the absence of any demand for a de novo trial it would have been in his discretion to date, sign and pronounce this judgment.”

4. This sentence is followed by the following observations:

“… There is no specific provision in the Criminal Procedure Code corresponding to Order XX, rule 2, of the Code of Civil Procedure, under which it might be argued that the Second Judge was merely the mouth-piece of the first. A Magistrate who pronounces a judgment of his predecessor must in my opinion be taken to adopt it as his own.”

5. It, therefore, appears that the opinion of the learned Judges was that the second magistrate could pronounce a judgment written by his predecessor only if he adopted it as his own. (See Allikhan, In re2, in which this case has been referred to and explained). In the latter case (Allikhan, In re), it was held that s. 367 of the Code of Criminal Procedure does not authorise a succeeding Sessions Judge to pronounce a judgment of his predecessor, who had heard the sessions case and that the defect cannot be cured by the application of s. 537. It was further held that the words “presiding officer” referred to in two places in s. 367(1) mean in both the cases the presiding officer at the trial, who is assumed in the section to have written and pronounced his judgment while still holding the same office. It is true that this decision dealt with a case which was tried by a Sessions Judge. But s. 367, which was construed in this case, applies both to Sessions trials and to trials before magistrates. The Calcutta and Rangoon High Court? have taken the same view. In Mahomed Bafique v. King-Emperora . [1926] A.I.R Cal. 537. it was held that s. 350, Criminal Procedure Code, authorizes a magistrate to try a case on evidence recorded by his predecessor, but he cannot deliver a judgment, written out by his predecessor without considering the evidence on the record and without hearing the arguments if any on behalf of the accused. In Baisnab Charan Das v. Amin Ali . 1923 I.L.R 50 Cal. 684. it was observed that s. 350, Criminal Procedure Code, would, under certain circumstances, give the magistrate jurisdiction to decide the case on evidence recorded by his predecessor, but it could not give him jurisdiction to deliver a judgment written by his predecessor. In Chinnayar v. Maung Mya Thi . [1939] A.I.R Rang. 249. it was observed that the succeeding magistrate may take the judgment left by his predecessor and compare it with the evidence recorded in the case, and if he discovers that it expresses what he himself would have decided in the case, and, if there is no demand for a new trial on the part of the accused, he may deliver that judgment as his own. It was also observed in this case that it is not contemplated in the Code that a magistrate shall deliver any judgment other than his own, and that if he does so, the defect goes beyond a mere irregularity curable under s. 537, Criminal Procedure Code.

6. Sub-section (1) of s. 350 provides inter alia that when any magistrate after having heard and recorded the whole of the evidence ceases to exercise jurisdiction and is succeeded by another magistrate, the magistrate so succeeding may act on the evidence so recorded by his predecessor. Under this section, therefore, it is open to a succeeding magistrate to act and give judgment on the evidence recorded by his predecessor. The section does not, however, empower him to deliver the judgment written by his predecessor. In fact, there is no provision in the Criminal Procedure Code, which empowers him to do so. There is no provision in this Code corresponding to that contained in O. XX, r. 2, Civil Procedure Code. Reference has been made to s. 367, Criminal Procedure Code. Sub-section (1) of this section provides that every judgment shall be written by the presiding officer of the Court; and shall contain the point or points for determination; the decision thereon and the reasons for the decision; and shall be dated and signed by the presiding officer in open Court at the time of pronouncing it. In this sub-section the expression “presiding officer” is used in two places. It has been urged that in each place it refers to the person who holds the office at the time when the relevant act is done and that the presiding officer, who writes the judgment may, therefore, be different from the one who pronounces the judgment. We are unable to accept this argument. In our opinion, the section clearly implies that the officer who writes the judgment should also pronounce it. If the Legislature had intended otherwise, it would have inserted in the Criminal Procedure Code provisions similar to those contained in O. XX, r. 2, Civil Procedure Code.

7. The judgment must, therefore, be the judgment of the magistrate who presides over the Court at the time when it is pronounced. In other words, he must apply his mind to the facts' and circumstances of the case and arrive at his own findings on the evidence recorded by his predecessor. If after applying his own mind to the case, he agrees with the conclusions and the reasons therefor, as recorded in the judgment written by his predecessor, that is, if he finds that judgment expresses what he himself would decide, it would be open to him to pronounce that judgment as his own. But he cannot do so, if his findings or the reasons therefor are different from those recorded by his predecessor.

8. The view, which we are taking, finds support in the following observations of the Supreme Court in Surendra Singh v. The State of Uttar Pradesh (P. 334):

“In our opinion, a judgment within the meaning of these sections (of the Criminal Procedure Code) is the final decision of the court intimated to the parties and to the world at large by formal ‘pronouncement’ or ‘delivery’ in open court. It is a judicial act which must be performed in a judicial way… It is evident that the decision which is so pronounced or intimated must his a declaration of the mind of the court as it is ait the time of pronouncement…But however it is done it must be an expression, of the mind of the court at the time of delivery…Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may Write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the court. That is what constitutes the ‘judgment’.”

9. The judgment is, therefore, a declaration of the mind of the Court at the time of its delivery. Consequently where a magistrate, who has recorded the evidence, is transferred before he has delivered the judgment, the judgment or the decision must be an expression of the mind of the magistrate, who presides over the Court when the judgment is to be pronounced, i.e, of the succeeding magistrate. It must be his judgment and his decision and not that of his predecessor.

10. In this case the succeeding magistrate, Mr. Shinde, has not applied his mind to the evidence recorded in the case or arrived at his own conclusions on the points which arose for determination. He merely signed the judgment written by Mr. Joglekar and pronounced it. This he was not competent to do.

11. Mr. Sali has urged that no prejudice has been caused to the respondents and that consequently the defect or the irregularity, if any, is curable under s. 537. In our opinion, s. 537 has no application in this ease, as it is not a case of mere irregularity but of illegality, because the judgment, by which the respondents were convicted, is of the magistrate, who had ceased to exercise jurisdiction, and who was not competent to deal with the case on the day on which it was pronounced.

12. The learned Additional Sessions Judge was, therefore, right in holding that the convictions of the accused were illegal.

13. The learned Judge has directed that the case should be sent back to the magistrate for re-trial on merits.

14. Under s. 350 as recently amended, it is not obligatory on the succeeding magistrate to have a de novo trial or to record all the evidence afresh. It is open to him to act on the evidence recorded by his predecessor. We, therefore, modify the order passed by the learned Judge and direct that the Judicial Magistrate, First Class, Mohol, should proceed further with the case in the manner provided in s. 350 of the Criminal Procedure Code and thereafter dispose of it in accordance with law. Subject to this modification in the order passed by the learned Judge, the rule will be discharged.

15. Rule discharged.