Darogi Chamar and Others vs Emperor

Atkinson, J.—The five petitioners herein were charged with an offence u/s 411 of the Indian Penal Code, viz., dishonestly receiving stolen property.

It appears that three sacks of paddy belonging to the complainant were taken from his verandah by night and that on the following day two of the seeks were discovered in the house of accused No. 2, the paddy having been taken out from the sacks and divided into portions.

The learned Magistrate of the 2nd Class, who fried this cage, sets forth in his judgment very cogent reasons for showing that all the accused are guilty of an offence within the meaning of Section 411 of the Indian Penal Code. The learned trial Magistrate considered the case and the evidence as against each accused, and he found that the taking of the sacks of paddy from the complainant''s verandah by the petitioners was with the dishonest intention of appropriating complainant''s property to the petitioners'' use.

On appeal the case came before Mr. Sircar, the Sub-Divisional Magistrate of Bhagalpore, and I confess that his judgment is, in my opinion, perfunctory in the extreme. Section 424 of the Criminal Procedure Code read with Section 367 provides what a judgment of an Appellate Court should contain to be a judgment such as the law requires. Section 367 provides that it shall contain the point or points for determination, the decision thereon and the reasons for arriving at the decision.

Now the judgment of the Sub-Divisional Magistrate does not state the point or points arising for determination and the reasons for the decision at which the Appellate Court has arrived.

The learned Sub-Divisional Magistrate on appeal has not considered whether upon the evidence the taking of the bags by the accused was a taking by them dishonestly knowing that the same was stolen property, nor has the learned Sub-Divisional Magistrate on appeal considered the weight of the evidence adduced at the trial as against each of the accused individually, and as to how far such evidence would warrant a conviction of each of the five persons charged in the appeal which he was called upon to determine.

The ruling reported as Ram Lal Singh v. Hari Charan Ahir 5 Ind. Cas. 999 : 37 C.L.T. 410 : 11 Cri. L.J. 348, in my opinion, applies'' in its reasoning with direct precision to the facts of the particular case now before me; and with the authority of that decision I venture to express my entire concurrence Sir Lawrence Jenkins says:

It is continually overlooked by Courts of Appeal that Section 424 of the Criminal Procedure Code prescribes that the rules contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable to the judgment of any Appellate Court. other than a High Court, and one of the sections in Chapter XXVI is Section 367. which prescribes that a judgment shall among other things, contain the point or points for determination, the decision thereon and the reasons for the decision. Now the conviction in this case by the Court intention to take dishonestly any moveable property out of the possession of the person aggrieved without that person''s consent; and one of the points for determination, therefore is whether there was that intention. Admittedly there is no finding on that point in the judgment of the lower Appellate Court This is not a mere technical objection because one of the points urged on the part of the defence is that, though there may have been the moving of property, there was not the intention to take that property dishonestly cut of the possession of any other person, inasmuch as, it is contended there was a bona fide claim of right; so that it is apparent that it was absolutely essential that that point should be contained in the judgment and that it should be desired.

The reasoning of that decision, in my opinion, applies with strikng force to the case.

The learned Sub-Divisional Magistrate in appeal contents himself with saying that he adopts the reasons given by the trial Court to support the grounds of his decision for maintaining the conviction of all the accused on appeal.

In my opinion such a judgment is quite erroneous in form. The judgment of the Appellate Court must stand by itself and can-not be read as supplementary or additional or to be explained and deciphered by aid of the judgment of the trial Court. Authority for this proposition is to be found in Jamait Mullick v. Emperor 35 C. 138 : 12 C.W.N. 134 : 6 Cri. L.J. 427. And in this Court also I think the reasoning of a decision reported as Gurubari Behera v. Emperor 43 Ind. Cas. 439 : 2 P.L.J. 695 : 4 P.L.W. 153 : 19 Cri.L.J. 151 would apply, viz., that the law requires an Appellate Court to write a reasoned and considered judgment setting out the facts and points arising for determination and stating the reasons and grounds for its decision.

In my opinion the learned Sub-Divisional Magistrate has failed to discharge the duty which the law cast upon him. The case must be remanded to him so that he may write a proper judgment upon the facts and evidence, and I should like him to state also his reasons for reducing the sentence of six months passed by the trial Court to a period of three months'' rigorous imprisonment against each of the accused. If the learned Sub Divisional Magistrate was honestly satisfied that the reasoning of the trial Court was satisfactory and convincing, it is hard to understand how he came to reduce the sentence in the manner in which he did.

However, I shall remand the case to the learned Sub-Divisional Magistrate to enable him to write a proper judgment in accordance with law.

As the accused are on bail, let them remain on bail pending a proper judgment being prepared by the Sub-Divisional Magistrate.