Authored By : S.C. Ghose, Robert Fulton Rampini

S.C. Ghose and Robert Fulton Rampini, JJ.

1. This rule was granted for the purpose of considering thequestion whether the conviction in this case should be set aside, because atthe time when sentence was pronounced by the Magistrate there was no judgmentin existence..

2. The facts appear to be that the case was tried by Mr.Weston, an Assistant Magistrate. After the evidence was adduced on both sides,the case was. fixed for argument and judgment on the 19th November. On thatday, the argument was heard, and the case adjourned to the 21st for judgment.On that day, the Magistrate had not written his judgment, but he pronouncedsentence, finding the accused guilty under Section 147 of the Indian Penal Coderecording an order to that effect. The judgment was, however, written on theevening of the same date, the 21st.

3. An appeal was preferred by the accused to the DistrictMagistrate; and it seems to have been admitted before that officer, as appearsfrom his judgment, that under Section 537 of the Code the irregularitycommitted by the Assistant Magistrate was not fatal to the conviction, unlessit had occasioned a failure of justice, or materially prejudiced the accused;but it was contended that the accused had been so prejudiced, as the sentencewas passed before full consideration of the evidence, and that the judgment hadto be written up-afterwards to suit the sentence. The District Magistrate has,however, found that the accused was in no way prejudiced, as the AssistantMagistrate had taken time to consider judgment, and had evidently fullyconsidered the case before passing sentence, though he had no time at the timeto write the judgment itself. The District Magistrate then considers themerits, of the case, being of opinion that under Section 537 of the Code heought to do> so, and after full consideration of the facts has held that theAssistant Magistrate was right in convicting the accused persons with, however,one exception.

4. It has been contended before us by the learned Counselfor the petitioners, that no judgment having been recorded and read out at thetime the sentence was passed, the conviction was altogether bad, and shouldtherefore be set aside, and that Section 537 of the Code does not cure theillegal act committed by the Assistant Magistrate; and he has relied in supportof his argument, principally upon the opinion expressed by TREVELYAN, J., inthe case of Damu Senapati v. Sridhar Rajwar I.L.R. 21 Cal. 121 [LQ/CalHC/1893/83] and the judgmentof the Allahabad Court in Queen v. Hurgobind Singh I.L.R. 14 All. 242.

5. There can be no doubt, as held in the case of DamuSenapati v. Sridhar Rajwar, that the judgment of the Assistant Magistrate wasnot in accordance with the provisions of Sections 366 and 367 of the Code; butwe are not prepared to say, as it has been argued before us, that the sentencepassed by the Magistrate was an illegal sentence, such as to vitiate the trialand render a. fresh trial necessary.

6. In the case of Damu Senapati just referred to, the factswere in one material respect different from the case before us. There, whilethe Counsel for the accused was arguing the case, the Magistrate was engaged inwriting his-judgment, and so he did not listen to the arguments addressed tohim, and when the sentence was pronounced he had not finished the judgment. Onappeal, however, the Sessions Judge, upon a consideration of the evidence, cameto the same conclusion as the Magistrate and affirmed the conviction. In thisstate of facts, TREVELYAN, J., held that the judgment of the Magistrate had notbeen arrived at in the way provided by law, and as the Magistrate had convictedthe accused with out attending to the arguments of the Counsel, the trial wasnot a fair trial, and therefore the accused was entitled to a fresh trial.PRINSEP and OKinealy, JJ., however, came to a different conclusion; and,although they agreed with TREVELYAN, J., in holding that the judgment was notin accordance with the law, still they held that the irregularity committed bythe Magistrate was one falling within Section 537 of the Code, and that nofailure of justice having been occasioned by reason of that irregularity, therewas no necessity for a re-trial.

7. We are not called upon in the present case to discusswhich of the two conflicting views that were expressed in the case of DamuSenapati is the right one, for we take it that the facts, upon which thoseviews were expressed, were essentially different from those before us. There,as has already been stated, the Magistrate pronounced sentence withoutlistening to and considering the arguments in support of the defence; and thiscircumstance materially distinguishes that case from the one before us, wherethe Magistrate bad, after consideration of the arguments addressed to him,reserved judgment, and apparently after full consideration, pronouncedsentence, though he had not the judgment ready at the time. We think that inthe circumstances of this case, the omission of the Magistrate in recording ajudgment before pronouncing his sentence is an omission or irregularity whichfalls within the purview of Section 537 of the Code, and it can hardly be saidthat the sentence itself by reason of this irregularity was an illegal sentencealtogether, so as to render the trial nugatory.

8. In the case of Hurgabind Singh, before the Allahabad HighCourt, the learned Judges held that the Sessions Judge had committed variousillegalities and irregularities in the trial of the case; one of them beingthat immediately or shortly after the opinions of the assessors were delivered,he passed his sentence, which was one of death, without recording a judgment inaccordance with Section 367 of the Code; and they held that, inasmuch as thesentence could only follow and not precede the decision contained in a writtenjudgment, the sentence was illegal. It does not appear whether the learnedJudges considered the provisions of Section 537 of the Code. But, however thatmay be, they did not set aside the conviction on that ground and order a freshtrial, but examined the evidence, as a Court of Appeal, and set aside theconviction on the merits.

9. The course followed by the Allahabad Court is that whichthe District Magistrate adopted in this case; and he has, as already mentioned,after full consideration of the evidence, come to the conclusion that theconviction is right.

10. Having regard to the circumstances of this case, we areunable to say for the petitioners that there has been any failure of justice inthis case by reason of the omission of the Assistant Magistrate in recording ajudgment before pronouncing sentence, and that there has been no fair trial inthis case, so as to render a fresh trial necessary.

11. We accordingly discharge the rule.

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Tilak Chandra Sarkar and Ors. vs. Baisagomoff (14.02.1896 - CALHC)