Ramautar Singh and Others vs Harihar Singh and Others

K.B.N. Singh, J.—Shree Shiva Shanker Prasad, Additional Sessions Judge of Patna, by his letter dated the 1st September, 1967, has made a reference to this Court recommending for the setting aside of an order dated the 21st June, 1966. passed by Shree J.P. Srivastava, Subdivisional Magistrate, Dinapur recalling a proceeding u/s 145 of the Code of Criminal Procedure (hereinafter referred to as the Code) from the file of Shree Onkar Nath, a Magistrate of the First Class, at Dinapore, and transferring the same to Shree M. Fraead, another Magistrate of the first class at Dinapore, for disposal according to law.

It appears that a proceeding u/s 145 of the Code Harihar Singh and others -first party v. Ramautar Singh and Ors.- Second Party was pending in the court of Shree J.P. Srivastava, a Magistrate of the first class, at Dinapore. After hearing the parties, and perusing the statements documents and affidavits, the learned Magistrate fixed 15th of June, 1966. for passing final orders in this proceeding. On that date, he passed an order to the following effect:

Orders passed and kept separate - Parties absent.

Issue notice to 21.6-66.

Sd. J.P. Srivastava 15/6

Soon after, he passed another order in these terms:

Later. Since I am handing oven charge, let this record be put before Shri O. Nath, who is requested to deliver order before parties.

Sd. J.P. Srivastava 15/6

From the orders quoted above, it appears that Shree Srivastava could not pronounce the order on the 15th June, 1966, and accordingly he fixed 2lst of June, 1966, for the same. But, because he was under orders of transfer and was making over charge on the same day, he wanted Shree Onkar Nath. Magistrate, to pronounce the order in court in presence of the parties. It further appears that the first party, in the meantime, moved the Subdivisional Magistrate, Dinapore, to recall the proceeding from the file of Shree J. P. Sri. vastava, and they also made a prayer before Shree Onkar Nath, asking him not to deliver the order written by Shree J. P. Srivastava. The Subdivisional Magistrate, after hearing the parties, and perusing the record, passed the impugned order, holding that as Shree J. P. Srivaatava had not pronounced the final orders in the proceeding in question, he could not delegate this power to another Magistrate, who had not heard the proceeding. Accordingly, in exercise of his powers u/s 528(2) of the Code, he recalled the proceeding to his file and transferred it to Shree M. Prasad, another Magistrate of the first class, for disposal according to law. It is against this order that the learned Additional Sessions Judge was moved by the second party and he made the present reference.

The learned Additional Sessions Judge is of the view that the final order written out in a proceeding u/s 145 of the Code by one Magistrate could be pronounced by his successor in case of his transfer. Consequently, he is of the opinion that the order of the Sub-divisional Magistrate, recalling the proceedings from the file of the successor Magistrate and transferring the same to another Magistrate for disposal according to law is not justified. In coming to this conclusion the learned Additional Judge has taken help of the pro. visions of 0. 20, B. 2 of the Civil P.C.

Mr. Kailash Boy, while opposing the reference, has contended that the final orders in a criminal proceeding have to be pronounced in open court by the Magistrate who heard the proceeding and not by the successor court in case of the transfer of the first Magistrate.

Mr. R. S. Sinha, appearing for the reference, has, however, contended, on the other hand, that from a perusal of the order record, ed by the Magistrate on the 15th June. 1966, it appears that he had already passed the final order in the proceeding in question and as such nothing remained to be done on a subsequent day either by him or by his successor, Shree Onkar Nath. It will, however, appear that the learned Additional Sessions Judge is not of the view that the order in question was delivered on the date it was written out. Evidently there are obvious facts and circumstances also which clearly go to show that Shree J. P. Srivastava, who heard the proceeding and wrote out the final orders, did not deliver the orders in question in court on the ground that the parties were absent, and it was for this reason that he adjourned the pronouncement of the order to the 21st of June, 1966, and entrusted this work to be done by his successor, Shree Onkar Nath. In such a circumstance, the expression "Orders passed and kept separate" occurring in the first order recorded by the learned Magistrate on the 15th June, 1966, cannot be taken to mean that ha pronounced the order in question. On the other hand, it means that be wrote out the order but did not pronounce it on account of the absence of the parties, and, therefore, he kept it separately. The question for consideration now is as to whether it is necessary for a final order u/s 145 of the Code to be pronounced in Court.

No doubt, Section 369 of the Code, which relates to judgments, does not in terms apply in respect of final orders, which do not amount to judgments in trials, but, the general principle on which the Section is based would apply. Babu Ram v. Ramji Lal AIR 1964 Punj 444. That being so, the final order in a proceeding u/s 145 of the Code should be pronounced in Court by the Magistrate who heard the proceeding. The specific provisions of the CPC relating to the pronouncement of the judgment by a successor has no application to a proceeding u/s 145 of the Criminal P.C.

The question is, whether this power can be delegated. The law is that the judgment must be pronounced by the Judge or the Magistrate who held the trial and this cannot be delegated by him to others. The Magistrate who has gone on leave or has been transferred to another District and has handed over charge, has no jurisdiction to pronounce the judgment in a case heard by him. There was divergence of judicial opinion on the point as to whether a Magistrate had jurisdiction to deliver judgment written by his predecessor, but this matter appears to have been resolved by the Supreme Court decision in the case of Sarendra Singh v. State of Uttar Pradesh UK 1954 S.C. 194 from which it can reasonably be inferred that a successor Magistrate cannot deliver a final order or a judgment passed by his predecessor-in-office. That being so, in the present case, it was not open to Shree J. P. Srivastava to delegate the function to Shree Onkar Nath nor was Shree Onkar Nath competent to deliver the final orders written out by his predecessor.

In view of the two consecutive orders recorded by Shree J. P. Srivastava on the 15th June, 1966, it is clear that the final order in the proceeding written out by him was not delivered in Court on the date fixed. That being so, the order of the learned Sub-divisional Magistrate recalling the proceeding and transferring it to another Magistrate for its disposal according to law u/s 528(2) of the Code cannot be said to be illegal.

The learned Additional Sessions Judge has referred, to the case of Thikka Surya Rao and Others Vs. Sirangu Sathiraju and Another, for the proposition that the order passed in a proceeding u/s 145 of the Code is not a ''judgment'' and so Sections 866 and 367 of the Code do not in terms apply to such proceedings and consequently, a successor Magistrate can pronounce the orders of his predecessor. It will, however, appear that this view has not been accepted in several decisions of the other High Courts. For example, in the case of Chhotey Lal Vs. Tinke Lal and Another, , it wait held that although Section 869 of the Code refers in express terms to ''judgments'' under Chap. 26 of the Code, still it is clear that the principle laid down therein applies also to final orders, which are in the nature of judgments. The same view was expressed by a Division Bench of the Calcutta High Court in the case of Parbati Charan Roy v. Sajjad Ahmad Choudhury ILR (1908) Cal 850. In that case the Magistrate after passing the final order in a case u/s 115 of the Code had reviewed it on the ground that it was not a judgment, but, their Lordships set aside the order on the ground that the order in question was a final order and could not be reviewed. In this case reported in AIR 1964 Punj 444 also a similar view was expreseed. The weight of the authorities, therefore, appears to be in favour of the view expressed by him. Once it is he''d that principles of Section 366 and 867 of the code apply to the final orders passed in a proceeding u/s 145 of the Code, it has to beconceded that the final order has to be pronounced in open Court by the Magistrate who heard the proceeding.

For the aforesaid reasons, I hold that there is no merit in this reference and it is accordingly discharged. As sufficient time has already clapeed and the proceeding has reached the concluding stage, the new Magistrate will try to expedite the disposal within the shortest possible time.

B.P. Sinha,J.

I agree.