JOGESH CHANDRA ROY Vs. SURENDRA MOHAN ROY CHAUDHURI

JUDGEMENT

(1.) This rule is directed against an appellate order of acquittal on charges under Secs.193, 192 and 211, I. P.C., and it was issued on three grounds. The first ground is that the judgment having been written and signed by the learned Judge Mr. Ellis when he had ceased to have jurisdiction in the district of Tipperah, was ultra vires and illegal, and it could not be legally delivered by Mr. B. N. Mitra, and was as such wholly inoperative in law. The judgment purports to be signed by Mr. T. H. Ellis on 24 July 1930. But towards the end of the judgment it is stated as follows: I must hero observe that the decision of this appeal involved the reading of a considerable volume of evidence and several police diaries. I finished hearing the appeal in the afternoon of 19 July. I was then under orders of transfer to Dacca, and actually made over charge of my post as District Judge of Tipperah on 21 July, 1930. I had no time to write this judgment before my departure; so I have written the judgment in Dacca and now-forward it to my successor for delivery.

(2.) It appears that on 26 July the judgment as written by Mr. Ellis, was delivered by Mr. B. N. Mitra who was then the Sessions Judge. It also appears that when Mr. Ellis wrote the judgment ho had ceased to be the presiding Judge of the Sessions Court of Tipperah.

(3.) The learned Advocate General appearing in support of the rule has contended that such a judgment is not contemplated by Secs.366 and 367 read with Section 424, Criminal P.C. I may point out that under Order 20, Rule 2, Civil P.C., a Judge may pronounce a judgment written but not pronounced by his predecessor, and that there is no such corresponding provision in the Criminal Procedure Code. One reason of this may be that the judgment of a criminal Court entails consequences which affect the person more closely than that of a civil Court and the consequences follow immediately, unless there is leave of the Court to the contrary. Hence it may be necessary that the presiding officer delivering the judgment should be the officer who is responsible for the reasons therefor. I am supported in this by the case of Mahomed Rafique V/s. Emperor A.I.R. 1926 Cal. 537, which states as follows: Section 350, Criminal P.C., no doubt authorizes a Magistrate to try a case on evidence recorded by his predecessor but there is no authority for the proposition that a Magistrate who succeeds his predecessor can deliver a judgment which had been written out by his predecessor without considering the evidence on the record and without hearing the arguments, if any, on behalf of the accused. Such a procedure cannot stand to reason, because the Magistrate who himself makes responsible for the judgment, must always be the Magistrate who before delivery of the judgment had considered the evidence on record fairly and impartially and had also listened to the arguments, if any, on behalf of the accused.