ORDER U.C. Maheshwari, J. This revision petition is directed against the order dated 3-2-2003, passed by 2nd Additional Sessions Judge, Damoh, in Criminal Revision No. 99/2001, whereby the revision of non-applicant Nos. 1 to 3 (party No. 2), was allowed, and order dated 12-11-2001 passed by Sub-Divisional Magistrate, Tendukheda (for short 'S.D.M.') in Criminal Case No. 223/1997 was set aside with direction to decide afresh, and the matter has been remitted back to S.D.M. The factual matrix of the case is that the non-applicant No. 3 submitted an Ishtgasa u/s 145 of Criminal Procedure Code (for short the 'Code') regarding some agricultural land situated at village Lakhani (Badgua). The Non-applicants No. 1 to 3 (Party No. 2) and the present applicants (Party No. 1) both were claiming possession over the property and because of this there was apprehension of the breach of peace. Therefore, S.D.M. Court, was prayed for appropriate proceedings under aforesaid provisions. At the initial stage Presiding Officer Shri Gaun was posted as S.D.M. On consideration of Ishtgasa, by passing preliminary order respective parties were directed to submit their reply and meanwhile, as an interim measure some interim order was also passed. By filing reply both parties were claiming their possession over the property on the basis of their respective papers, affidavits and other documents. At the earlier stage, the S.D.M. by order dated 2-12-1999 held that non-applicants No. 1 to 3 (Party No. 2) was in possession of the property on which the present applicants went in revision in which by order dated 9-12-2000, Third Additional Sessions Judge, Damoh dismantled (set aside) order dated 2-12-1999 and remitted back to trial Court to decide afresh with some directions. In view of the aforesaid directions of the Sessions Court the case was again taken up by the S.D.M. and according to record of trial Court the written arguments were submitted by the parties on dated 29-10-2001 and the case was fixed for 12-11-2001 for orders. Meanwhile, the then (earlier) Presiding Officer (Shri Gaun) was transferred and on 1-11-2001 the successor of the Office Shri J. P. Dubey took over the charge and on 12-11-2001 S.D.M. was on tour and on 13-11-2001, an order, which was tagged with the file in a closed envelope and undisputedly the same was written and signed by the earlier Presiding Officer, was delivered. So undisputed fact on record that the successor in the office has never heard and applied his mind or decided the matter, only order passed by the earlier presiding officer was delivered by him. According to this order the disputed land was held in possession of the present applicants (Party No. 1). Being aggrieved again a Criminal Revision No. 99/01 was preferred by present non-applicants No. 1 to 3 (Party No. 2) and the same was decided by the Sessions Court by impugned order. In that revision besides other grounds, for assailing the order Non-applicants No. 1 to 3 took a ground that on submitting the written arguments on dated 29-10-2001, the then Presiding Officer of the Court was transferred after one or two days and handed over the charge of the office on 31-10-2001 or on 1-11-2001 and on the date of delivery of the order he was not the Presiding Officer or member of that Court and according to settled principles and as per propriety of the Judicial System, after receiving the information of transfer or order one should not be proceeded to adjudicate the matter. On considering the rival contention regarding this aspect only the subordinate Revisional Court on interpretation of sections 353, and 354 of the Code held that the order passed by earlier Presiding Officer and delivered by subsequent Officer is not sustainable and after setting aside it remanded back to decide afresh on merits by the present Presiding Officer of S.D.M. Court with certain directions on which the present revision petition is preferred. It is quite clear from the impugned order that except abovesaid question the other questions were not examined by subordinate Revisional Court. Having heard the learned counsel of the respective parties, I am bound to consider all aspects as submitted by the parties in peculiar facts and circumstances of the case. The counsel for applicant vehemently argued and assailed the order on various grounds. The first submission was that whenever and wherever the arguments are heard and the order is dictated and signed by the earlier Presiding Officer and the same is kept in closed envelop with the file and after taking over the charge of the office by successor the same order was declared that does not come in the purview of illegality, irregularity or under error of jurisdiction vested in the Court. His further submission was that the order passed by the trial Court was not falling under the definition of judgment and judgment and order are different things and in the impugned matter only order was passed, therefore, the principles regarding judgment were not applicable. He further submitted that the revisional Court committed a grave illegality in not deciding the case on merits regarding the factual dispute of the parties and he also assailed the direction for remand/remit the case and prayed for restoring the order of trial Court by setting aside the impugned order and in this regard he also submitted some arguments on merits of the case also. In support of his contention he places his reliance on some decided cases the same would be considered at the appropriate stage of this order. While on the other hand, the counsel of non-applicants 1 to 3 (Party No. 2) has supported and justified the impugned order and according to him order or judgment both are pronouncement of the decision or delivery of adjudication of the dispute and under the existing Judicial System the Presiding Officer of the Court has authority to change his mind till last moment of delivery of his pronouncement and further submitted whenever on the date of the delivery or pronouncement the Presiding Officer is not available in the same office and he is not member of that Court then in such a circumstance, if the order passed by earlier Officer and delivered by successor in office that procedure was absolutely illegal and against the propriety of the law. He also submitted that in the normal procedure when a longer date is fixed for order and meanwhile the concerning Presiding Officer is transferred and received information or order, regarding his transfer then the propriety demands that order should not be passed by him and if any order is passed then the same was not sustainable under the law, and, therefore, Revisional Court has not committed any error of jurisdiction. He also submitted that the justice should not only be done but it should appear to have been done, and on this principle the order impugned by which the case has been remitted back to the trial Court for a fresh disposal is not contrary to law in any manner and he also placed his reliance on some authorities which are to be considered at the appropriate stage of this order. Counsel of the applicants cited decision of the case Parasram Shivlal Tara Sewania Vs. Laxminarayan and Others, in which it is held in para 3 as under: (3) The law has provided that the judgment should be written by the Magistrate who has heard the case. It might happen that a Magistrate is transferred or for some other reasons is unable to complete the hearing; in that event, the successor takes over the case. He might either, complete the hearing beginning at the stage at which his predecessor has left it, or acting suo motu or on the prayer of the accused, hear it de novo. This is well known and involves no uncertainty or confusion. Since Magistrates are constantly on the move, it does happen that one who has completed the hearing of a case, has to leave before he pronounces judgment." If he does not write the judgment at all, there is nothing to be done about it and the case has to be heard again, and then disposed of. His successor cannot in a criminal case, write a judgment on the materials wholly and solely recorded by his predecessor. But, often it happens that the out-going magistrate has got just time to write the judgment but is not able to stay on to pronounce it. It may be, one or two holidays intervene or he has to leave so late in the day that by then the Court time is over. These are unusual happenings and certainly [magistrates should do their best to avoid them. But when they do occur, there is nothing left except for the magistrate, if he is unable to stay on, at least to write the judgment and leave it with his successor, who in his turn, would pronounce it in Court. These are unusual happenings and certainly [magistrates should do their best to avoid them. But when they do occur, there is nothing left except for the magistrate, if he is unable to stay on, at least to write the judgment and leave it with his successor, who in his turn, would pronounce it in Court. In such a case, the judicial part of the work, namely, the weighing of the pros and cons of the case and arriving at a decision as to the guilt or otherwise of the accused, has been done by the very magistrate who has heard the case. But the mechanical part of the work, namely, of taking the paper and reading out in the Court room before the accused has been done by the successor. I do not see how the merits of the judicial decision can at all be affected by the mechanical work of reading out. The notion that there is something possibly illegal in a successor doing certain things in connection with a case heard and decided by a magistrate, comes out of the failure to distinguish between judicial acts which certainly cannot be delegated and must be done by the very magistrate who hears the case and ministerial or mechanical acts which could be done by him or his successor, though, naturally, it would be more convenient if he did it himself. According to this judgment, such circumstance often only on some occasion where outgoing Magistrate had a time to write the judgment but is not able to stay to pronounce it. It may be one or two holidays intervene or he has to leave so late in the day that by then the Court time is over. These are unusual happenings and certainly Magistrate should do their best to avoid such circumstance and in spite such order or judgment written and left with the file then subsequent Magistrate can deliver the judgment and according to this in such circumstance the merits of the judicial decision is remained unaffected. It has also been held that that the order passed by the earlier Presiding Officer and delivered by the subsequent Officer is only the mechanical work but the facts remains that where an Officer who received or got information or order of transfer he should have avoided the creation of unhappy circumstances. It has also been held that that the order passed by the earlier Presiding Officer and delivered by the subsequent Officer is only the mechanical work but the facts remains that where an Officer who received or got information or order of transfer he should have avoided the creation of unhappy circumstances. The counsel of applicant cited another decision of the case Surya Rao vs. Sathiraju reported in AIR 1948 Mad 510 in this judgment the interpretation and difference of judgment and order was explained in view of sections 366 and 367 of the old Criminal Procedure Code. But as per the findings of the Sessions Court the situation has been changed after enforcing the new Criminal Procedure Code, 1973 whereby the section 145 of the Code has also been included in section 354(6) of the new Criminal Procedure Code and the same was not in abovesaid sections of old Criminal Procedure Code and, therefore, the appropriate logic has been supplied by the Sessions Court for not relying the ratio of Madras High Court and, therefore, this precedent is not profitable for the applicants. He further referred to the case of Krushna Mohan and Others Vs. Sudhakar Das and Others, in which it was held that the order passed u/s 145(6) of Code is not judgment but the same was decided in view of old Criminal Procedure Code and with respect I hold that the principle being old code is not applicable to the present case in view of the aforesaid new provision of Criminal Procedure Code. He also cited some other decision namely Bansi and others vs. Hari Singh and others reported in AIR 1956 All 97 the same was decided in view of old provisions of the Criminal Procedure Code and is not applicable to the present case in view of the aforesaid new provisions. He also referred the case of Ratnakar Naik and Others (Second Party Nos. 1 to 3) Vs. Golakh Chandra Samal (First Party) and Others (Second Party Nos. 4 and 5), which is also not profitable to the applicants because the same was also decided in view of the provisions of the old Criminal Procedure Code. While, on the other hand, counsel for non-applicants No. 1 to 3 (Party No. 2) has placed his reliance firstly, on the case of Surendra Singh and Others Vs. 4 and 5), which is also not profitable to the applicants because the same was also decided in view of the provisions of the old Criminal Procedure Code. While, on the other hand, counsel for non-applicants No. 1 to 3 (Party No. 2) has placed his reliance firstly, on the case of Surendra Singh and Others Vs. The State of Uttar Pradesh, in which it is held in paras 11 and 12 as under : (11) An important point therefore arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. We lay no stress on the mode or manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open Court. But however it is done it must be an expression of the mind of the Court at the time of delivery. We say this because that is the first judicial act touching the judgment which the Court performs after the hearing. Everything else uptil then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open Court with the intention of making it the operative decision of the Court. That is what constitutes, the "judgment." (12) Now up to the moment the judgment is delivered Judges have the right to change their mind, there is a sort of 'locus paenitentiae', and indeed last minute alterations often do occur. Therefore, however much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystallize into a full fledged judgment and become operative. Therefore, however much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystallize into a full fledged judgment and become operative. It follows that the Judge who "delivers" the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in court but he must be in existence as a member of the Court and be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part. If he hands in a draft and signs it and indicates that he intends that to be the final expository of his views it can be assumed that those are still his views at the moment of delivery if he is alive and in a position to change his mind but takes no steps to arrest delivery. But one cannot assume that he would not have changed his mind if he is no longer in a position to do so. A Judge's responsibility is heavy and when a man's life and liberty hang upon his decision nothing can be left to chance or doubt or conjecture; also, a question of public policy is involved. As we have indicated, it is frequently the practice to send a draft, sometime a signed draft, to a brother Judge who also heard the case. This may be merely for his information, or for consideration and criticism. The mere signing of the draft does not necessarily indicate a closed mind. We feel it would be against public policy to leave the door open for an investigation whether a draft sent by a Judge was intended to embody his final and unalterable opinion or was only intended to be a tentative draft sent with an unwritten understanding that he is free to change his mind should fresh light drawn upon him before the delivery of judgment. According to aforesaid dictum of the Supreme Court it is quite clear that the judgment means a final decision of the Court which can be said a pronouncement or delivery in open Court and it was also said that the decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement and this Act should be done in a judicial way in open Court. But, in any circumstance it must be an expression of the mind of the Court at the time of delivery. The abovesaid judgment specifically says that upto the moment the judgment is delivered, Judges have the right to change their mind upto the last minute and if declares an alteration could also be done and therefore it was held that however much a draft judgment may have been signed beforehand, it is nothing but a draft till it is delivered as the Judgment of the Court. It further says that Judge who delivers the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in Court but he must be in existence as a member of that Court and be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part and this principle is laid down with this aspect that judicial act which must be performed in a judicial way. In view of the aforesaid dictum when the case at hand is examined then it is undisputed position that on the date of delivery of the order dated 12-11-2001 or 13-11-2001, the concerning Preying Officer of the S.D.M. Court neither was a member or the Officer of the said Court and subsequent Officer had already taken over the charge on 1-11-2001 and predecessor of the office could not be a member or sitting officer of the Court, and not in a position to change any thing in judgment and stop the delivery of the same, therefore, the abovesaid principle laid down by the Apex Court is directly applicable to the present case. The said counsel further referred a case of this Court in the matter of Basant Mala Jha vs. State ofM. P. and another in W. P. No. 3281/96 in which in para 17 of the order inter alia it is observed that after receiving information or order about his transfer from the Court he passes the order on merits then that may be one of the circumstances for taking appropriate disciplinary action against the officer concerned and said writ petition of the concerning judicial officer was dismissed on various grounds along with the above said grounds therefore this judgment also reflects that after getting information about transfer the concerning officer should not pass any order on merits of the matter. In addition, I would like to mention that according to our judicial system, justice should not only be done but to keep the faith in our judicial system the justice should also appear to have been done. In view of this principle, the order passed by the Sessions Court cannot be said wrong or under violation of any provision of law. Before parting from the case, I would like to mention here that in the case in hand, when written arguments has filed on 29-10-2001 and on 1-11-2001 the successor of the earlier Presiding Officer took over the charge of the office then certainly it was known by earlier Presiding Officer who drawn up the proceeding on 29-10-2001 that his transfer has already been ordered by the superior authority and case was already fixed for 12-11-2001 for delivery of the order then what was necessity or urgency or contingency for him to pass the order on merits and tagged with file in closed envelop at the eve of leaving the office on transfer near about dated 31-10-2001, This, itself, reflects that order passed by earlier Presiding Officer at the eve of leaving his office requires afresh consideration by successor in office who is discharging duties as regular S.D.M. of that office. In view of the aforesaid premises, I have not found any irregularity or illegality or anything against the propriety of law or perversity in the impugned order which can be levelled that the Revisional Court has committed any error of jurisdiction in passing the same, therefore, the revision is devoid of any merits and it deserves to be and is hereby dismissed.