(Horwill, J.) In the Court of the Sessions Judge of Chittoor there were four accused. The first was charged under Section 302 of the Indian Penal Code with the murder of one Bandi Ramalingappa. The other three were charged under the same section read with Section 109 of the Code with abetment of the murder. There was also a minor charge against the fourth accused of voluntarily causing hurt. The first accused was found guilty as charged and sentenced to death. The second accused was found guilty of abetment of murder and sentenced to transportation for life. The third and fourth accused were acquitted. The first and second accused have appealed.

It has been argued as a preliminary point that there was no legal conviction of the two appellants: because the judgment was written by a Judge having no jurisdiction to write the judgment and pronounced by a Judge who had not heard the evidence. The facts on which this argument is based are these: the evidence was recorded and arguments heard by Mr. Nainar. Thereafter, he handed over charge to Mr. Panchapakesa Aiyar, who had been appointed to relieve him at Chittoor. Mr. Nainar had been appointed to the Guntur Sessions division: but did not join immediately and was not in charge of it on any of the material dates. On the 12th January, 1946, the day after he had completed the hearing of the case, Mr. Nainar dictated the judgment to the shorthand writer in the Judge's Bungalow. At that time, Mr. Panchapakesa Aiyar was the District Judge. Mr. Nainar probably received the type script of the judgment on the 14th January, on which day he corrected it, signed it, and dated it and handed it over to Mr. Panchapakesa Aiyar, who pronounced it in open Court on behalf of Mr. Nainar on the 15th January. The question is whether the circumstance that at the time of writing this judgment and at the time of pronouncing it Mr. Nainar was not the Sessions Judge of Chittoor renders the judgment of no avail and makes the orders passed void.

The case of the appellant is a very simple one. They argue that Mr. Nainar became functus officio on the 11th of January when he handed over charge to Mr. Panchapakesa Aiyar and that thereafter he had no jurisdiction to write a judgment and Mr. Panchapakesa Aiyar had no jurisdiction to pronounce it; the judgment which Mr. Nainar wrote and signed was not a judgment but merely a memorandum of his personal opinions which had no judicial effect. The learned Public Prosecutor, on the other hand, had pointed out the distinction drawn in the Code between a trial and a judgment and has sought to contrast the strict requirements with regard to a trial with the relative informality of the rules regarding the pronouncement of judgments. He concedes that it is a fundamental rule of Criminal Jurisprudence that the Judge who heard the evidence should write the judgment; but he argues that it is a matter of little consequence who actually pronounces the judgment in Court and that it was of no importance whether Mr. Nainar was actually. In possession of the office of Sessions Judge, Chittoor, on the dates when he wrote the judgment and Mr. Panchapakesa Aiyar pronounced it. He has referred to certain decisions in civil matters in which it has been held that even though a Judge might be on leave or on vacation or in a new station he could write the judgment of his successor to pronounce. He argues that Section 367, Cr. P. C. does not enjoin the pronouncement of a judgment by the Judge who wrote it and that on a strict reading of Section 367, Cr. P. C. no irregularity, still less an illegality was committed; and that if any irregularity or illegality was committed, it could be cured by Section 537, Cr. P. C.

In view of this divergence of interpretation of Section 367, Cr. P. C. it is necessary to enquire to what extent it was thought necessary before the Codes of Civil and Criminal Procedure took their present shape that the Judge who heard the evidence should write the judgment and pronounce it, and how far the procedure has since been modified. It seems to us that such provisions as Or. XVIII rule 15, C. P. C. which permits a succeeding Judge to use the evidence recorded by his predecessor and Order XX, rule 2, which authorises a Judge to pronounce a judgment of his predecessor, suggest that without such rules it would be necessary for the same Judge to hear the case from beginning to end and to pronounce the judgment. We are indebted to Mr. Jayarama Aiyar for drawing our attention to some of the older codes and the decisions based upon them, so that we might see what Judges thought on these matters when the requirements of the Civil Law and the Criminal Law were the same. The rules enunciated under Order XVIII, rule 15 and Order XX, rule 2 were introduced into the Civil Procedure in the Code of 1877. In the earlier Code of 1859 we do not find any corresponding rules. Mr. Jayarama Aiyar has drawn our attention to Nelson's Commentaries on the Code of Criminal Procedure, a book written in 1873. Certain passages in the Commentary on the then sections 463 and 464 proceed on the basis that the law relating to Criminal Procedure is the same as that relating to Civil Procedure; and we have verified the references made therein to the proceedings of this Court. In the proceedings of the Madras Suddar Court, dated the 11th June, 1861, it was said: —

“If after a Judge has left the Court, it be found that in any suit brought to a final hearing no written judgment has been placed on record by him, his successor must hear and decide the suit, notwithstanding that such Judge may have pronounced judgment in the case and made a brief note of his decision.

In the proceedings of the Madras Suddar Court of the 7th August, 1849 it was said: —

“Judgments written by a Civil Judge but not pronounced in open Court, cannot, in the event of his removal before pronouncing the same, be published by his successor, but the cases must be re-investigated.”

After reference to certain English cases, the learned Commentator added: —

“When a Judge, after writing his judgment, but before delivering it in open Court dies or leaves the bench, his written judgment is not to be considered as a judgment, but merely as an opinion.”

In Mahomed Akil…Defendant; v. Asadunnissa Bebee…Plaintiff.* 9 Weekly Reporter 1, a Full Bench of learned Judges of the Calcutta High Court were considering the effect of a number of judgments written by members of the Bench and left in the office of the Registrar in accordance with the practice then prevailing; and the learned Judges who pronounced the judgments of the Court held that the so called judgments left in the Office of the Registrar were not judgments at all but merely memoranda of the opinions of the Judges who left them. It was pointed out that although those learned Judges had expressed their opinion with some finality in those judgments, it was not at all improbable that if they had had the benefit of reading the judgments of the members of the Bench and had sat with them and pronounced their judgments with them they might well have been led to decisions differing from those expressed in the judgments left in the office.

In Naranbhai Vrijhbukkan Das v. Naroshankar Chandroshankar 4 Bom. H. C. R. 98 Appellate Civil Jurisdiction the learned Judges were considering an objection taken before them to the procedure adopted by a Munsif in acting upon the evidence recorded by the Principal Sudder Ameen and were of opinion that the Munsif had no jurisdiction to do so and had acted illegally. They pointed out that it was incumbent on every Judge to act upon the evidence of persons whom he had heard and seen for himself. One of the learned Judges, Tucker, J., put the matter in this way:

“It appears to me that one of the main underlying principals of the Code of Civil Procedure is that, at an original trial, the Judge who decides the cause shall have personally heard the evidence of the witnesses, on whose testimony his judgment is to be based, except in certain specified instances; and I cannot find that it is anywhere contemplated that a Judge of Court of first instance should pronounce judgment on evidence taken before a predecessor in the same Court, or before a Judge of any co-ordinate tribunal from which a part heard suit may have been removed.

I consider, therefore, that when a Judge of a Court of original jurisdiction, whose proceedings are regulated by the Code of Civil Procedure, dies, or is removed to another appointment, before the conclusion of a trial, or where a partially tried suit is removed from one court to another, the evidence of the witnesses, who have been examined by the Court which commenced the inquiry must be taken de novo, unless the parties consent that the depositions already recorded shall be read at the hearing before the Judge or Court on whom it will devolve to pass judgment.”

The other Judges expressed similar opinions. If that is the law with regard to civil suits, then the procedure for the conducting of criminal trials cannot be less strict; for it is even more necessary, in criminal cases that the Judge who writes and pronounces the judgment should have seen the witnesses and heard the evidence for himself.

No cases have been cited by the learned Public Prosecutor which suggest that prior to 1877 it was considered permissible in either civil or criminal cases for a Judge to pronounce a judgment he had not written or which was not based on evidence beard by him entirely. The importance of the Judges hearing the evidence of witnesses and observing their demeanour has been emphasised in many decisions and the possibility pointed out of the Judge's changing his opinion at any time before he actually signs the judgment pronounced by him. It will be seen from the above analysis that the original law was that the Judge who writes and pronounces a judgment must be the Judge who hears all the evidence. This must still be deemed to be the law, except in so far as it has been modified by the legislature from time to time. We have already referred to the provisions of Order XVIII, rule 15 and Order XX, rule 2 of the C. P. C. which modified the law in civil cases. If there are no corresponding provisions in the Cr. P. C., we shall be compelled to conclude that the earlier rule prevails. In Kunhammad Haji, In re3 this Court had to consider whether a criminal court had any powers of review similar to those possessed by Civil Courts by virtue of Order XLVII of the Code of Civil Procedure. The learned Judges pointed out that the Criminal Procedure Code had been passed after the Civil Procedure Code and had been amended many times and held that since no powers for review were expressly given in the Criminal Procedure Code, it must be presumed that do such power exists. In the same way, we must hold that unless the Code of Criminal Procedure expressly provides for the pronouncement of a judgment by a Judge other than he who recorded the evidence, a succeeding Judge would have no power to do so.

One modification of the original strict rule was introduced into Section 350 of the present Code, which permits a succeeding magistrate exercising jurisdiction to act upon the evidence recorded by his predecessor or partly recorded by him; but even that modification is hedged round by provisos which give an accused person a right to demand that the witnesses or any of them should be re-summoned and re-heard. There Is admittedly no corresponding provision relating to sessions trials; but it is argued that Section 367 of the Code also modifies the ancient rule and permits a judgment written by one Judge to be pronounced by his successor. Sub-section (1) of Section 367 of the Code reads: —

“Every such judgment shall, except as otherwise expressly provided by this Code be written by the presiding officer of the Court … in the language 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.”

If in each case where the term ‘presiding officer’ is used, it refers to the ‘presiding officer’ who happens to hold the office at the time when the relevant act is done, then Section 367 would appear to justify the writing of the judgment by the officer who was presiding over the Court at the time when the judgment was written and the pronouncement of the judgment by the Judge who happened to be holding office at the time of the pronouncement. In other words, a Judge who had not heard any of the evidence or any of the arguments could write the judgment because he happened to be presiding over the Court at the time when the judgment was written. The learned Public Prosecutor agrees that this interpretation cannot be put on Section 367, Cr. P. C. as it would lead to gross violation of the fundamental principle of criminal law that the Judge who hears the evidence should write the judgment. He therefore asks us to read Section 367 of the Code as if the presiding officer first referred to was not the presiding officer at the time of writing the judg-ment, but the presiding officer at the time of the recording of the evidence and the bearing of the arguments and the second presiding officer the officer presiding at the time of the pronouncement of the judgment. That would necessitate the use of the words ‘presiding officer’ in two different senses in the same sub-section, a violation of an accepted principle of interpretation of statutes. We are therefore driven to conclude that the presiding officer referred to in Section 367 (1), Cr. P. C. in both cases means 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.

The learned Public Prosecutor has, however, a certain amount of authority in support of his argument. In Sankara Pillai, In re4 the learned Judges had to consider whether a magistrate who delivered a judgment that his predecessor had intended to deliver and would doubtless have delivered if he had not been transferred, had jurisdiction to do so. The learned Judges disposed of the matter very briefly by referring to Section 367, Cr. P. C. and saying that there was nothing in that section which suggested that the Judge who pronounced the judgment had to be the same as the Judge who wrote it. They did not consider this section in conjunction with the rest of the Code, nor did they consider the principles underlying the procedure in criminal cases. Later, the matter came up before this Court again in slightly different form in Re Savarimuthu Pillai5. The facts there were similar to those in Sankara Pillai, In re except that in the later case the succeeding magistrate declined to pronounce the judgment and decided to hear the evidence afresh. The question before the learned Judges was whether he had jurisdiction to do so. The case of Sankara Pillai, In Re was considered by the learned Judges, who seemed to think that the earlier decision could be justified only on the supposition that the succeeding magistrate adopted the judgment of his predecessor as his own. The learned Judge who delivered the leading judgment said: —

“Whatever action he takes must be under Section 350 (1) which leaves it to his discretion. 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 mouthpiece of the first. A Magistrate who pronounces a judgment of his predecessor must in my opinion be taken to adopt it as his own.”

That would mean that the second magistrate could adopt the judgment as his own only if he were entitled — as perhaps a magistrate is entitled by virtue of Section 350 (1), Cr. P. C. — to deliver a judgment based on evidence recorded by his predecessor. That cannot be done in a Sessions case to which Section 350 (1) would not apply. Moreover, it is clear in this case that Mr. Panchapakesa Aiyar did not adopt the judgment of Mr. Nainar as his own. He purported merely to be the mouthpiece of Mr. Nainar, as is indicated by the use of the following words at the end of the judgment: “Pronounced in open Court on behalf of Mr. Nainar.” In Jogesh Chandra Roy v. Surendra Mohan Roy Chowdary [1913] 35 C.W.N 838 the decision in Sankara Pillai, In Re was expressly dissented from, it being held that the Sessions Judge had no jurisdiction to pronounce the judgment of his predecessor. If the decision in Sankara Pillai, In Re purports to be an interpretation of Section 367, Cr. P. C. without reference to the provisions of Section 350 Cr. P. C. which deals with cases before a magistrate, then we would find it difficult, with respect, to accept that interpretation as correct. But it is unnecessary for the purpose of disposing of this appeal to expressly dissent from it, because it can be distinguished on two grounds: the first is that already indicated i.e, it dealt with a case where there was a change of magistrates in which different considerations arose because of the provisions of Section 350, Cr. P. C., and the second is that in that case the earlier magistrate continued in office when he wrote the judgment, whereas in this case when the judgment of Mr. Nainar was written he was no longer the Sessions Judge of Chittoor.

We may mention in passing an argument of the learned Public Prosecutor based on certain decisions of civil cases that although Mr. Nainar was no longer the Sessions Judge of Chittoor he was still a Sessions Judge possessing certain powers on account of holding that office; but we find no ground for thinking that a Sessions Judge who has ceased to be the Sessions Judge of one division and has not become the Sessions Judge of another has any powers as Sessions Judge simplicitor. He has jurisdiction to exercise the powers of a Sessions Judge only by virtue of his appointment to a particular Sessions division.

We therefore hold that Section 367, Cr. P. C. does not authorise a succeeding Judge to pronounce a judgment of his predecessor. We agree with the learned advocates for the ap- pellants that the moment Mr. Nainar handed over to Mr. Panchapakesa Aiyar he became functus officio and had no jurisdiction to write a judgment; and Mr. Panchapakesa Aiyar had no jurisdiction to pronounce a judgment based on evidence recorded by Mr. Nainar. If Mr. Nainar had no jurisdiction to write a judgment and if what purports to be his judgment is not a judgment, then the defect, if it may be so called, cannot be cured by Section 537, Cr. P. C. That section says: —

“No finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered … on account of any error, omission or irregularity in the … judgment … ”

If, as we have held, there was no judgment and if what was pronounced by Mr. Panchapakesa Aiyar was merely an expression of the opinions of Mr. Nainar on the evidence that he had heard, then there was no judgment that could be cured, and the order convicting the appellants was entirely without jurisdiction and therefore void. It would follow that the appellants were not lawfully convicted.

Notice has been given to the third and fourth accused, in whose favour an order of acquittal was passed. Since the order purporting to acquit them was not embodied in a valid judgment they were not legally acquitted.

In the result, Sessions case No. 38 of 1945 is remanded to the Sessions Court for disposal after re-hearing. In other words a fresh trial will have to be held by the present Sessions Judge.

N.T.RRe-trial ordered.