MAHADEO APPARAO WALE Vs. ISAMIYA ABDUL AZIZ

JUDGEMENT

(1.) THE petitioner had filed a complaint under Sections 352 and 447, Indian Penal Code, against the respondents in the Court of the Judicial Magistrate, First Class, Mohol. The evidence in the case was recorded by Mr. S.B. Joglekar. Thereafter he wrote his judgment and fixed the hearing on May 29, 1957, for delivering judgment. On that day the accused respondents were absent at the time when the judgment was to be pronounced. Mr. Joglekar, therefore, did not deliver the judgment and directed warrants to be issued for the arrest of the accused. Thereafter, he was succeeded by Mr. L.D. Shinde, who signed the judgment written by Mr. Joglekar and pronounced it on July 30, 1957. By this judgment the accused were convicted and sentenced. They appealed against their convictions and the sentences passed upon them to the Sessions Court. The Additional Sessions Judge, who heard the appeal, came to the conclusion that Mr. Shinde had not adopted the judgment written by his predecessor as his own and that consequently he could not pronounce that judgment. In his opinion, the convictions of the accused were, therefore, illegal. Accordingly, he set aside their convictions and sentences and directed the case to be retried. Against that order, the present revision application has been filed.

(2.) MR . Sali, who appears on behalf of the petitioner, has urged that Mr. Shinde was competent to pronounce the judgment, which had been written by his predecessor. He has relied on Chandika Prasad v. Emperor , in which the learned Additional Judicial Commissioner observed that under Section 350, Criminal Procedure Code, the succeeding magistrate is entitled to act on the evidence recorded by his predecessor and also on the notes left by his predecessor, even if those notes took the form of a judgment. According to these observations, therefore, a succeeding magistrate can adopt the judgment written by his predecessor as his own and thereafter pronounce it. That is not the position in the present case. The learned Additional Sessions Judge has pointed out that there is nothing on the record to show that Mr. Shinde had applied his mind to the evidence in the case and then adopted the judgment of Mr. Joglekar as his own. On the other hand, from the record it appears that he merely signed the judgment written by Mr. Joglekar at the time when he pronounced it.

(3.) THE Calcutta and Rangoon High Courts have taken the same view. In Mahomed Bafique v. King -Emperor : AIR1926Cal537 it was held that Section 350, Criminal Procedure Code, authorizes a magistrate to try a case on evidence recorded by his predecessor, but he cannot deliver a judgment written out by his predecessor without considering the evidence on the record and without hearing the arguments if any on behalf of the accused. In Baisnab Charan Das v. Amin Ali ILR(1923) 50 Cal. 664 it was observed that Section 350, Criminal Procedure Code, would, under certain circumstances, give the magistrate jurisdiction to decide the case on evidence recorded by his predecessor, but it could not give him jurisdiction to deliver a judgment written by his predecessor. In Chinnayar v. Maung Mya Thi AIR[1939] Rang. 249 it was observed that the succeeding magistrate may take the judgment left by his predecessor and compare it with the evidence recorded in the case, and if he discovers that it expresses what he himself would have decided in the case, and, if there is no demand for a new trial on the part of the accused, he may deliver that judgment as his own. It was also observed in this case that it is not contemplated in the Code that a magistrate shall deliver any judgment other than his own, and that if he does so, the defect goes beyond a mere irregularity curable under Section 37, Criminal Procedure Code.