DHONDHA KANDOO Vs. SITARAM

JUDGEMENT

(1.) This is an application for the revision of an order of the District Magistrate of Azamgarh, directing a Second Class Magistrate to write and pronounce judgment in a case which had been tried by him. The circumstances are that a case under Section 325, Indian Penal Code, had been instituted in the court of the Magistrate, who passed an order on December 21, 1932, on the order sheet to the effect that final orders, would be passed on December 23. On that date the Magistrate merely wrote an informal order on the order sheet acquitting the accused without delivering a judgment at all. An application for revision was filed in the court of the District Magistrate, Who recorded an order that he would look into the matter on inspecting the tahsil, and his order of January 13 which is the subject of the present application was apparently written during the inspection of the tahsil, but must be regarded as an order passed on the present application to him for revision.

(2.) It is argued in support of the present application that the proceedings of the Magistrate were irregular in that he acquitted the accused in the case without writing a judgment. He did, however, subsequently write a judgment dated January 19, in accordance with the order of the District Magistrate in which he reviewed the facts of the case and discussed the evidence. The proceedings are, therefore, complete. Mr. S. N. Mukerji has quoted two decisions on which he bases his argument that the order of the District Magistrate should be set aside and that a retrial should be ordered. Such a course would entail not only the setting aside of the order of the District Magistrate but also the judgment of the Tahsildar Magistrate recorded and pronounced on January 15, and the order of acquittal, which may or may not be regarded as an order passed under Section 258 (1), Criminal Procedure Code, which was recorded on December 23, 1932. In the case of Queen Empress V/s. Hargobind Singh (1) 14 A. 242 : A. W. N. 1891, 83., it was held by a Full Bench of this Court that: A sentence which has been passed or a direction that an accused be set at liberty which has been given at a Sessions trial before the judgment required by Section 367 of the Criminal P. C., 1882, has been written is illegal.

(3.) In that case the Sessions Judge without writing a proper judgment had recorded an order directing the four persons accused to be hanged under Section 3(sic)2, Indian Penal Code. In setting aside that order and directing a retrial the Full Bench remarked: Inasmuch as the sentence in the case of a conviction and the direction to set the accused at liberty in the case of an acquittal, can only follow on the decision and cannot precede it and inasmuch as the decision must be contained in the written judgment, and there only, it necessarily follows that when, in cases like the present to which Section 367 applies, there is no written judgment when the sentence is passed, the sentence is illegal. The requirements of Secs.366 and 367 are to mere matters of form. The provisions of those sections are based upon good and substantial grounds of public policy, and whether they are or not, Sessions Judges must obey them and not be a law to themselves. Any Judge at the conclusion of the evidence in a case, some of which may be not quite distinct in his mind owing to the length of the trial, might pass sentence on a prisoner and find it impossible honestly afterwards to put on paper good reasons for having convicted him, or on the other hand, might direct that the accused be set at liberty and find it impossible afterwards honestly to put on paper good reasons for the acquittal