In Re: Patan Alli Khan and Others

Horwill, J.—In the Court of the Sessions Judge of Chittoor there were four accused. The first was charged u/s 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 typescript 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 of January. The question is whether the

circumstances 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 appellants is a very simple one. They argue that Mr. Nainar became functus officio on the nth 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, has 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 for his successor to pronounce. He argues that Section 367,

Criminal Procedure Code, does not enjoin the pronouncement of a judgment by the Judge who wrote it and that on a strict reading of Section 367,

Criminal Procedure Code, no irregularity, still less an illegality, was committed; and that if any irregularity or illegality was committed, it could be

cured by Section 537, Criminal Procedure Code.

In view of this divergence of interpretation of Section 367, Criminal Procedure Code, 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 Order 18, Rule 15, Civil

Procedure Code, which permits a succeeding Judge to use the evidence recorded by his predecessor and Order 20, 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 cause

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 theCivil Lawand

the Criminal Lawwere thesame. The rules enunciated under Order 18, rule I5 and Order 20, Rule 2 were introduced into the Civil Procedure in

the Code of 1877. In the earlierCode 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 Sudder Court dated the nth 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 Sudder 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 Commenlater 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 v. Asadunnissa Bibee (1867) 9 W.R. 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 cf the Registrar in accordance with the practice then prevailing;

and the learned Judges who pronounced the judgments cf 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 other 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 Vrijbhukandas v. Naroshankar Chandroshankar (1867) 4 Bom. H.C.R. 98 (A.C.J, the learned Judges were considering an

objection taken before them to the procedure adopted by a Munsiff in acting upon the evidence recorded by the Principal Sudder Ameer and

were of opinion that the Munsiff 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 principles of the CPC 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 a 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 Tudges 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 heard 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 18, Rule 15 and Order 20, Rule 2 of the CPC which modified the law in civil cases. If there are

no corresponding provisions in the Code of Criminal Procedure, we shall be compelled to conclude that the earlier rule prevails. In Kunhammad

Haji, In re (1922) 44.LM.J. 450 : ILR 46 Mad. 381 this Court had to consider whether a Criminal Court had any powers of review similar to

those possessed by Civil Courts by virue of Order 47 of the Code of Civil Procedure. The learned Judges pointed out that the Criminal Procedure

Code had been passed after the CPC and had been amended many times, and held that since no powers for review Sere expressly given in the

Criminal Procedure Code it must be presumed that no 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 dertermination, 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 officer 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 intrepretation

cannot be put on Section 367 of the Criminal Procedure Code, 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 judgment, but the presiding officer at the time of the recording of the evidence and

the hearing 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) of the Criminal Procedure

Code 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 Re: Sankara Pillai

alias Sankaranarayana Pillay, , 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 of the Code of Criminal Procedure 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 a slightly different form in Savarimuthu Pillaii, In re (1916) 32 M.L.J. 81: ILR 40 Mad. 108. The facts there were similar

to those in Sankara Pillai, In Re: Sankara Pillai alias Sankaranarayana Pillay, , 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: Sankara Pillai alias Sankaranarayana Pillay, , 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 u/s 350 (1) which leaves it to his discretion. There is no specific provision in the Criminal Procedure Code

corresponding to Order 20, rule a of the Civil Procedure Code, 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), Criminal Procedure Code--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 mouth-piece 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 Chowdhury 35

C.W.N. 838, the decision in Sankara Pillai, In Re: Sankara Pillai alias Sankaranarayana Pillay, , 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: Sankara Pillai alias

Sankaranarayana Pillay, , purports to be an interpretation of Section 367 of the Criminal Procedure Code without reference to the provisions of

Section 350, Criminal Procedure Code, 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, Criminal Procedure Code; 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 a Sessions Judge simpliciter. 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 of the Criminal Procedure Code does not authorise a succeeding Judge to pronounce a judgment of his

predecessor. We agree with the learned advocates for the appellants that the moment Mr. Nainar handed over charge 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 of the Criminal Procedure Code. 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.