In Re: Savarimuthu Pillai and Others

William Ayling, J.—This case (Calendar Case No. 716 of 1915) on the file of the 2nd class Magistrate of Dindigul was tried by Mr. D.K.

Venkateswara Aiyar who heard all the evidence and adjourned it to 30th November 1915 for judgment. He also wrote and signed a judgment

adding the date (30th November 1915), but did not pronounce it as, when the case was called on 30th November 1915, one of the three accused

was absent. The case was, therefore, adjourned to secure the attendance of this man. On 8th December 1915, all the accused appeared; but by

that time Mr. Venkateswara Aiyar had been succeeded by Mr. N. Subramania Aiyar. The accused then demanded a de novo enquiry u/s 350 of

the Criminal Procedure Code: and Mr. Subramania Aiyar, apparently feeling doubts as to whether he would in such circumstances be justified in

pronouncing his predecessor''s judgment, acceded to their demand.

The District Magistrate refers the case u/s 438 of the Criminal Procedure Code on the ground that Mr. Subramania Aiyar was bound to

pronounce his predecessor''s judgment and recommends that he should be ordered to do so, and that his order for a de novo trial should be set

aside.

It seems to me that the District Magistrate has taken a wrong view of the law and that the Sub-Magistrate was acting legally in deciding to hold

a de novo trial. It was held by a Bench of this Court in Sankara Pillai, In re 18 M.L.J. 197, construing Section 367 of the Criminal Procedure

Code, that a Magistrate did not act illegally in dating, signing and pronouncing in open Court a judgment which had been written by his

predecessor who had heard all the evidence. But there is nothing to indicate that the learned Judges held it to be obligatory on him to do so; the

question of how far his discretion would be fettered by the provisions of Section 350 of the Criminal Procedure Code was not considered at all.

Sections 366 and 367 of the Criminal Procedure Code read together require that a judgment shall be (1) written, (2) signed, (3) dated and (4)

pronounced in open Court--the latter three must take place on the same occasion. Till all these formalities have been gone through the judgment is

not delivered; and there is nothing to prevent the officer who wrote it from tearing it up and writing another. In this sense, it is incomplete.

The fact that the first Magistrate went so far as to sign and date the judgment he had written, is immaterial, seeing that he did not pronounce it.

Section 367 requires the dating and signifying to be in open Court at the time of pronouncement. The second Magistrate was, therefore, in exactly

the same position on 8th December 1915 as if he held in his hands a judgment which had been simply written and left behind by his predecessor.

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. Whether it would

have been legal for him to do so in the face of a demand for a de novo trial seems to me very doubtful: but that question need not be decided. That

he was not bound to deliver his predecessor''s judgment I am quite clear whether the accused demanded a de novo trial or not.

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 XX, Rule 2 of the Code of Civil Procedure, under which it might be argued that the second Judge was merely a

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. He

cannot be compelled to do this.

In my opinion there is no ground for interference and the records should be returned to the District Magistrate.

Napier, J.

I agree.