1. This appeal arises out of an order passed on 20-1-68 by Mr. B. N. Doctor, City Magistrate, 10th Court, Ahmedabad, in summary Case No. 1915 of 1967 whereby the appellant-accused came to be convicted and sentenced to suffer rigorous imprisonment for four months and to pay a fine of Rs. 300/-, or in default to suffer rigorous imprisonment for one and a half months for an offence of possessing 60 drams of liquor without pass or permit on 27-2-67, under Section 66(1)(b) of the Bombay Prohibition Act, hereinafter to be referred to as 'the Act'.

2. The point made out by Mr. Divatia, the learned Advocate appointed for the appellant-accused was that the order of conviction and sentence passed against the appellant is illegal and void inasmuch as the learned Magistrate has not recorded the judgment in the case and thereby contravening the mandatory provisions contained in Section 264 of the Criminal Procedure Code.

3. It appears on a perusal of the proceedings of this case that on 18-12-67 since the surety of the accused came to be discharged at his request, the accused was taken into custody by the Court. The case had then proceeded and on 20-1-68 after hearing the arguments of the learned advocates appearing in the case, passed an order of conviction and sentence against, him. He, however, did not record a judgment in the case. It appears that on 24-1-68 the copy of the judgment was asked for by the accused and instead supplying him the certified copy of the entire judgment, he came to be supplied with the extract from the judgment in the case. That copy was received by him in jail on 27-1-68. Thereupon he despatched a memo of appeal to this Court against the said order of conviction and sentence passed by the learned Magistrate. On receiving the same, the matter came up for admission before me on 5-2-68. Since there was no judgment attached to the memo of appeal and with a view to avoid any delay being caused in the matter coming up before this Court for admission (he being in jail) till a full certified copy of the judgment is made available to the accused in jail, and then received by this Court, I directed the record and proceedings of the case to be called for from the Court of the learned Magistrate. On the order reaching the Court, it appears that he wrote out the judgment on the next day i. e. on 6-2-68 and sent up the case-papers along with the judgment on the next day. The appeal came up for admission on 9-2-68. Since it was admitted, it has come up for final hearing to-day.

4. The learned Magistrate has appended a note before he set out the reasons in his judgment. That note is intended to show that he pronounced the order against the accused as soon as the trial was over "so that he might not have to stay as an under trial prisoner any longer" and for that reason, as stated by him, the reasons for his conviction were not recorded. He has then stated "that through oversight they could not be written afterwards." While the first reason given by him appears to be hardly convincing, as while one can understand, though it may not he a valid reason, that he would have to be in jail when he Is to be acquitted, for some time that may pass in writing the judgment, but when he was in jail, a day here or there would not much matter and even if a longer period was likely to take in writing out the judgment, he could well take into account any such period of his being required to be in jail as an under trial prisoner, while passing the order of sentence against him in the case. The real reason, therefore, appears to be that while he pronounced the order in the case, probably he must have thought of writing the judgment soon thereafter but could not do so through oversight. Any way the fact remains that this judgment containing the reasons for arriving at his finding in the case, came to be given so late as on 6-2-68 and that again after he received an intimation for sending the record and proceedings of this case. In fact an impression was created in seeing the extract of the order supplied to the accused, that it would take some time for preparing the certified copy of the judgment as is usually found. Apart from any benevolent attitude alleged to be shown to the accused, it has to be remembered that any such practice of leaving the judgment to be written out later cannot be justified and is highly improper, apart from the same contravening express provisions of law. The matter was even simple and in no way complicated. The judgment was not likely to take more time and in fact it covers about 20 lines. That apart, the question for consideration is whether the proceedings or the operative part of the order is liable to be quashed or set aside.

5. Ordinarily speaking, the Courts of the City Magistrate at Ahmedabad have to follow the provisions contained in Section 370 in Chapter XXVI of the Criminal Procedure Code which deals with the mode of delivering judgment. Section 370 provides that instead of recording a judgment in manner hereinbefore provided, viz. as contemplated in sections 366 and 367, a Presidency Magistrate (a City Magistrate in Ahmedabad as well) shall record the particulars as set out in clauses (a) to (i) therein. Clause (g) relates to the final order and Clause (i) says that in cases in which the Magistrate inflicts imprisonment, or fine exceeding two hundred rupees, or bath, a brief statement of the reasons for the conviction. In other words, in cases where any City Magistrate were to inflict a sentence of imprisonment, or fine exceeding two hundred rupees, or both, in any case he is required to give a brief statement of his reasons for the conviction. It appears, however, that this provision would not govern the present case, which was under the Bombay Prohibition Act.

6. The accused was tried, as already stated here above, for an offence of possessing liquor without any pass or permit so as to be liable under Section 66(1)(b) of the Act. Now Section 116 of the Act provides as follows:--

116. In all trials for offences under this Act, the Magistrate shall follow the procedure prescribed in the Code of Criminal Procedure, 1898, for the trial of summary cases in which an appeal lies.

Thus, the learned Magistrate even though he happened to be a City Magistrate in Ahmedabad was required to follow the procedure made applicable, for the trial of summary cases in which an appeal lies, under the provisions of the Criminal Procedure Code, We have, therefore, to turn to relevant provisions in the Criminal Procedure Code. Chapter XXII deals with the procedure for summary trials before the Court of the Magistrate. section 263 of the code provides the procedure in respect of cases where there is no appeal. Then comes Section 264 which says that in every case tried summarily by a Magistrate or Bench in which an appeal lies, such Magistrate' or Bench shall record the substance of the evidence and also the particulars mentioned in Section 263 and shall, beloro passing any sentence, record a judgment in the case. It is obvious that an appeal lies against the order of sentence passed by the learned Magistrate and when that is so, and as contemplated therein, he has to record the substance of evidence and also the particulars mentioned in Section 263. Not only that, hut he is further required to record a judgment in the case before passing any sentence. This section was substituted in place of the old one by Section 37 of the Act 26 of 1955. It is, therefore, clear that an order of sentence follows the judgment, and a judgment is an essential necessity to be recorded before any final order of sentence is passed by him in the case. The use of word "shall" at both the places in respect of recording the substance of evidence as also recording a judgment before passing any sentence in the case, would mean and suggest the requirement to be complied with and any non-compliance thereof would obviously amount to an illegality in the case. The learned Magistrate has followed the summary procedure contemplated in Section 264 of the Criminal Procedure Code while trying the accused in this case, but has contravened the latter part of section 264 of the code in not recording the judgment before the final order of sentence was passed. While an order of sentence can be passed later if any circumstances so require, the judgment cannot be, if the order of sentence were to be passed. Thus whether in following the summary procedure, or the ordinary procedure, the learned Magistrate was required to record judgment giving reasons for the conviction and passing sentence against the accused, and not having done so, he has committed an illegality in the case.

7. Mr. Nanavati, the learned Assistant Govt. Pleader for the State, however, contended that it was no doubt a contravention of the provisions contained in Section 264 of the Code, but it was in the nature of an irregularity in procedure and can, therefore, well be covered under Section 537 of the Criminal Procedure Code. According to him, therefore, as provided therein unless it has occasioned any failure of justice, the trial or even the final order passed in the case by the learned Magistrate cannot be quashed. In this regard, a reference was made to the case of Krishna Nayar Ram Nayar v. State, AIR 1960 Born 107. In that case, the question arose as to whether Section 264 was complied with inasmuch as the learned Presidency Magistrate and not separately recorded the substance of the evidence and that he had done so in the judgment from memory or from short notes made at the time when the evidence was given by the witnesses in the case. That was held to be an illegality committed in the case inasmuch as the substance of the evidence was not recorded as required under section 264 of the code, and then the observations were that "the accused must be held to have been prejudiced by the irregular procedure," In other words, according to him, any such non-compliance of recording the judgment before passing an order of sentence as required in the same provisions of Section 264 of the Code, was in the nature of an irregular procedure and, at any rate, is not such an illegality which vitiates the trial or the final order passed by the Court. Be it said here that though no doubt the expressions used therein tend to suggest that as irregular procedure, it would be difficult to put it at the same level with the subsequent part thereof which has been contravened by the learned Magistrate in passing an order of sentence before recording the judgment. It may well be said that the trial was according to procedure laid down for the purpose and again, the accused has had a fair trial inasmuch as he has been fully heard in the case, While therefore the entire trial may not be vitiated on account of the error of law committed by the learned Magistrate in contravening latter part of section 264 of the code, But, it would certainly vitiate the order of sentence based on no judgment as required in law.

8. Now, before we go to section 537 of the code relied upon by Mr. Nanavati, there are two other provisions contained in sections 529 and 530 of the code which relate to the irregularities that may be committed by the Magistrate during the proceedings. Section 529 deals with certain irregularities in regard to issuing certain orders or doing some acts erroneously in good faith as set out therein, the proceedings shall not be set aside merely on the ground of his not being so empowered. Then Section 530 relates to irregularities committed by any Magistrate not being empowered by law and they are committed in contravention of the provisions Bet out in various clauses thereof. In that regard it has been stated that those irregularities vitiate the proceedings. Section 531 relates to proceedings in wrong place and as set out therein, no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, Sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice. In none of these provisions, the contravention of section 264 of the code is referred to. Then comes section 537 of the code. It provides thus:--

"537. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account-

(a) of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or ***** Explanation:-- In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."

The emphasis was laid by Mr. Nanavati in saying that this was in the nature of an omission in the proceeding before or during the trial and that, therefore, unless it has resulted in failure of justice, the order of sentence passed by the Court of competent jurisdiction cannot be set aside. Clause (a) refers to any error, omission or irregularity and all that must have taken place in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial. Thus, the omission or irregularity must have taken place in that proceeding and that again it should have taken place before or during the trial under the Code. On this basis it was said that the learned Magistrate omitted to write out the judgment before pronouncing the order of sentence in that proceeding and according to him, since the trial was otherwise quite fair, it cannot be said that that omission should be taken as vitiating the trial or even any failure of justice can be said to have occasioned as a consequence thereof for, after all, according to him, any failure of justice that can be said to have arisen would be subsequent to the order by reason of the fact that his right in appeal may have been affected as he cannot set out any reasons against the reasons given by the learned Magistrate in his judgment for arriving at any such conclusion. I do not think it is possible to accede to the argument having regard to the language used in section 537 of the code. Absence of recording any judgment before pronouncing the order of conviction against the accused-appellant cannot be said to be in the proceeding for the simple reason that the trial came to an end with the pronouncement of the order. Were it a case of his having given out the judgment bearing the same date of the order subsequently, the matter may well be different. But, as observed by the learned Magistrate himself, he had forgotten to write any such judgment and that he happened to write it so late as on 6-2-68. It was thus neither an error nor an omission in 'order' or in any proceeding which merely amounted to an irregularity so as to come within the ambit of Section 537 of the Criminal Procedure Code. As I said above, the trial being otherwise fair and not affected by an illegality so committed in the case, the order of sentence has to be set aside it being clearly in contravention of an express provision contained in section 264 of the code, apart from resulting in failure of justice.

9. In this connection, I was referred to a decision In re. Athipalayan, AIR 1960 Mad 507, where it was held that the irregularity even in pronouncing the judgment in open Court and signing and dating the same would amount to an illegality vitiating the conviction and sentence passed in the case. While saying so, it has been observed thus:--

...... .it is one of the glorious principles of our criminal jurisprudence that we do not try or sentence people in absentia and we do not also convict and sentence people without judgments being pronounced in open court and signed and dated then and there. It may be different in the continental system of criminal jurisprudence.

It was a case in which a sentence was announced before judgment, which was the final decision of the court intimated to the parties and the world at large by formal pronouncement of delivery in open court by the trial judge and signing and dating it simultaneously and thereby terminating the criminal proceedings finally. In Nathusing Vridhasing v. Vasantlal B. Shah. 8 Guj LR 496 = (AIR 1968 Guj 210), the question arose whether the order of dismissal of a complaint under Section 203 of the Criminal Procedure Code without recording any reasons amounts to an irregularity or illegality curable under Section 537 of the Criminal Procedure Code and it was held that the order was one in contravention of that provision and such a breach of the provision renders the order void and ineffective, It was not curable under Section 537 of the Criminal Procedure Code. Some observations made by the Supreme Court in Willie (William) Slaney v. The State Of Madhya Pradesh ., AIR 1956 SC 116, were quoted to say that

"the complainant is entitled to know why his complaint has been dismissed with a view to consider an approach to a revisional Court. Being kept in ignorance of the reasons clearly prejudices his right to move the revisional Court and where he takes a matter to the revisional Court renders his task before that Court difficult, particularly in view of the limited scope of the provisions of Sections 438 and 439, Code of Criminal Procedure."

Those observations may well apply in the present case particularly when the accused has a right of appeal against the order of conviction and sentence passed in the case and he would obviously be at a disadvantage to assail the reasons which were in the mind of the learned Magistrate and which came out so late as on 6-2-68. The accused-appellant had a right to know the reasons which led the learned Magistrate to come to that conclusion. It may well happen that after coming to know about the accused going in appeal, the learned Magistrate may try to record a proper judgment which otherwise he may later on do in some other manner. In any event, the learned Magistrate has clearly contravened the imperative provisions contained in Section 264 of the Criminal Procedure Code by passing the sentence without recording the judgment in the case and has that way acted illegally, Such an illegality cannot be treated as an irregularity contemplated under Section 537 or an omission as urged by Mr. Nanavati so as to become curable one. Even if it were to be treated as such as coming within the ambit of Section 537, it can easily be said that it had occasioned failure of justice in the circumstances of the case. In any view of the matter, the order is, therefore, liable to be set aside.

10. That will require this Court to consider as to whether a retrial should be directed in the case. From the proceedings it appears that for about a month and two days he remained in jail as an under-trial prisoner and thereafter from 20-1-68 he has been undergoing the sentence imposed on him in the case. He has, thus, been in jail for sufficient period and to direct his retrial would involve his having to be further in jail as an under trial prisoner for a long period. The circumstances of the case therefore, do not require to direct a retrial in the case.

11. In the result, therefore, the order of conviction and sentence passed by the learned Magistrate against the accused appellant is set aside. There shall, how ever, be no retrial of the accused in view of the observations made here above.