Henry Thoby Princep, J.

1. In this case the rule was granted on the ground thatprima facie no proper judgment had been recorded in accordance with law by theMagistrate, raising the question whether in such a case a re-trial should behad.

2. It appears that a re-trial on a charge of rioting wasconducted by the Magistrate at a somewhat unusual length, the prisoners beingrepresented by Mr. K. B. Dutt, an Advocate of this Court. Late in the day, thetrial being completed, the Magistrate proceeded to deliver judgment. It isbeyond doubt that at the time that he passed sentence on the accused he badnot, in accordance with law, delivered his judgment by pronouncing it in openCourt, When Mr. K. B. Dutt asked leave to read it, it was refused, but thejudgment was read out to him by the Court Head-Constable under the orders ofthe Magistrate. At the end of the judgment, under the signature of theMagistrate, there is a note recorded in the following terms: "At therequest of the accuseds counsel, the judgment has been read over to him, byorder of the Court, by the Head-Constable, Babu Lal Sukul, as it was beingwritten out. M. A. Kadar, Deputy Magistrate." The explanation given by theMagistrate after the issue of the rule is not altogether consistent with thisstatement; but the terms of this note leave no doubt that when sentence waspronounced and the judgment was being read over by the Head-Constable under thedirection of the Magistrate, it had not been completed. There can be no doubtthat the judgment so pronounced is one not in accordance with Sections 366 and367 of the Criminal Procedure Code, and if the case had remained here, I shouldhave been in favour of directing a fresh trial. It is impossible for anyjudicial officer, before a judgment has been finished, to be quite certainwhether on a further consideration he will not arrive at a conclusion differentfrom that originally formed, and it would be most dangerous to allow a sentenceto be passed and a judgment setting out the reasons for the conviction andsentence to be afterwards written out. But the case did not remain in theMagistrates Court.

3. An appeal was preferred to the Sessions Court.

4. No objection can fairly be raised against the judgment ofthat Court, which is full and complete, and deals thoroughly with the whole ofthe evidence taken at the trial as well as with the objections taken to theproceedings of the Magistrate. It does not appear, however, from that judgmentthat objection was taken to the manner in which judgment was recorded by theMagistrate. Whether such objection was or was not taken in the course of theargument is not certain. It is pointed out that this objection was taken in thepetition of appeal presented to the Sessions Judge. I am not prepared to holdthat because any objection may be set out in a petition of appeal, it wasnecessarily taken in the course of the argument before the Appellate Court; noram I inclined to hold that it is the duty of an Appellate Court when thepersons before it are properly represented, to do more than to consider thearguments raised at the hearing of the appeal; or that it is necessary for anAppellate Court, in addition to those arguments, to consider what is also setout in the petition of appeal, so as to enable any party affected by itsjudgment to take advantage of any ground raised in the petition of appeal whichis not referred to in the judgment delivered, and without showing to thesatisfaction of the Superior Court that the particular objection was taken atthe hearing of the appeal.

5. It appears from the judgment of the Sessions Judge onappeal that serious objections were taken by the learned Counsel for theappellants to the manner in which the trial was conducted, referring generallyto the conduct of the Magistrate while evidence was being recorded. All thoseobjections have been considered and disallowed by the Sessions Judge, who hasexpressed his regret that "allegations of unfairness and partiality shouldhave been seriously made upon such trivial materials in respect of a Magistrateof long experience and unblemished reputation." Nothing has been saidbefore us in respect of these remarks.

6. The question now remains for me to consider on this rule,whether, the case having been fairly tried out on the evidence on the record inthe course of appeal, and the opinion of the Sessions Judge properly recordedin favour of the conviction of the appellants by order of the Magistrate, anyirregularity in the manner of recording or delivering his judgment by theDistrict Magistrate should be regarded as fatal to the trial so as to require are-trial. It seems to me that such an irregularity is one contemplated bySection 537 of the Code of Criminal Procedure, and that in this case it has notoccasioned any failure of justice. It is a matter of regret that such an irregularityon the part of the Magistrate should have occurred at all. Having regard to thelateness of the hour (which is stated to be 6-30 P.M.) at which theproceedings were concluded, the Magistrate would have exercised a betterdiscretion if he had postponed the delivery of judgment until the followingday. The irregularity having, in my opinion, occasioned no failure of justice,I would discharge the rule.

7. The other point raised in the rule was not made thesubject of argument.

8. As I do not agree with Trevelyan, J., the case must go toa third Judge to be appointed by the Chief Justice.

Trevelyan, J.

9. I agree with Mr. Justice Prinsep in thinking that thejudgment of the Deputy Magistrate was not pronounced in accordance with thelaw. There can be no doubt from the note appended by the Deputy Magistrate tohis judgment that sentence was given before the judgment was completed. Thereis also no doubt, from the explanation of the Deputy Magistrate, that he waswriting his judgment when the argument was going on. It follows from this thathe did not, as was His duty, attend to the argument of counsel. The so-calledjudgment was therefore not arrived at in the way provided by law, and, as thelearned Deputy Magistrate came to the conclusion without attending to thearguments of counsel, it follows that the trial before him was not a fair one.

10. The question remains whether the action of the DeputyMagistrate was set right by the fact that the Appellate Court did its duty. Iregret that on this question I am unable to agree in the conclusion arrived atby my learned colleague. I think that the terms of Section 537, CriminalProcedure Code, are inapplicable to the present case. This is more than a caseof a mere "error, omission or irregularity" in the judgment orproceedings. In my opinion there has been no judgment in accordance with thelaw. As I understand a "judgment," it means the expression of theopinion of the Judge or Magistrate arrived at after due consideration of theevidence and of the arguments. As the Magistrate was doing other things at thetime, there can have been no due consideration of the arguments, and thesentence seems to have been passed before, and not after, the consideration ofthe evidence. This course must in every case be unfair to an accused person. Ifit be unfair, it seems to me that he must be prejudiced by it. In my opinionthere is not in substance much, if any, difference between the circumstances ofthis case and a case where the Magistrate declines to bear evidence or argumentand sentences an accused person. As I understand the law laid down in theCriminal Procedure Code, every accused person is entitled to a fair andimpartial trial and a judgment given in the way I have above suggested. Ajudgment ought to be given by a Magistrate who has had the witnesses beforehim. It is not sufficient that there be a judgment on paper evidence. In thiscase, as there pretends to be a judgment of the first Court dealing with thefacts, the mischief is, I think, greater than if there had been no judgment atall. An Appellate Court naturally, to a great extent, relies upon conclusionsformed by Judges who have had the witnesses before them. Where the judgment ofthe first Court is arrived at in a way which the law does not recognise, theAppellate Court is misled, and the appellant is the more prejudiced.

11. If the fact that the Appellate Court has tried the caserightly, gets rid of a defect in the trial by the Court of First Instance, itmight equally be that a fair trial by the first Court would cure an unfairtrial by the Appellate Court. I think that the accused is entitled to a fairtrial by each Court.

12. In my opinion the conviction and sentence should be setaside and a new trial ordered.

O Kinealy, J.

13. In this case the petitioners were convicted by theDeputy Magistrate of Midnapore and sentenced; and in addition to that, theywere bound down to keep the peace.

14. The petitioners appealed to the Sessions Judge; and he,on the 5th of June 1893, confirmed the conviction and sentence of the DeputyMagistrate.

15. On the 15th of June they applied to this Court, as aCourt of Revision and obtained the following rule [After reading the rule (seeante page 123) His Lordship continued]:

In order to understand this rule, it must be borne in mindthat the petitioners asserted that the Deputy Magistrate had convicted theprisoners before hearing the whole argument of the accused, and was writing hisjudgment during a portion of the argument. The rule, neither in terms nor inpurport, refers to the trial which took place before the Court of Sessions.There would be some difficulty in setting aside the whole trial on the groundof irregularity in the Deputy Magistrates Court, without setting aside theorder of the Court of Sessions; but for this no rule was obtained. But apartfrom this, I think that the view taken of the case by Mr. Justice Prinsep iscorrect. I admit the great force in the view put forward by Mr. JusticeTrevelyan in regard to the necessities of the Code being complied with; but, onthe other hand, I am clearly of opinion that the irregularity in this casefalls within Chapter 95 of the Code of Criminal Procedure, and that this Courtis precluded by the terms of Section 537, from interfering with the orders ofthe Sessions Judge.

16. The rule is therefore discharged.

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Damu Senapati and Ors. vs. Sridhar Rajwar (17.08.1893 -CALHC)