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2015 DIGILAW 742 (ALL)

DEO RAJ v. STATE OF U. P.

2015-04-08

OM PRAKASH, SHASHI KANT GUPTA

body2015
JUDGMENT : Hon'ble Shashi Kant Gupta, J. Hon'ble Om Prakash-VII, J. (Delivered by Hon'ble Shashi Kant Gupta, J.) 1. This criminal appeal arises out of the judgment and order dated 31.10.1981 passed by the VIth Additional Sessions Judge, Allahabad in Criminal Sessions Trial No. 105 of 1980 (State Vs. Deo Raj & Others) whereby he has convicted and sentenced the appellant to life imprisonment under section 302 IPC read with Section 34 IPC and seven years rigorous imprisonment under section 307 IPC read with Section 34 IPC. Both the sentences were directed to run concurrently. 2. At the very outset, learned counsel for the appellant has submitted that this matter can not be heard by this Bench in view of the order dated 24.07.2003 passed by another Division Bench of this Court (Hon'ble S.K. Agarwal and Hon'ble V.S. Bajpai, JJ) whereby the appeal has already been allowed and therefore this Court has become functus officio. 3. Learned counsel for the appellant while referring to the provisions of Section 353 and 354 Cr.P.C. has submitted that the aforesaid provisions are not applicable in the present matter, since they relate to the procedure for delivery of judgment by the Trial Court. He further placed reliance upon the provision embodied in Section 362 Cr.P.C which provides that "no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." 4. Per contra, learned A.G.A. while placing reliance upon the provisions of Section 353 and the other provisions of the Cr.P.C and the High Court Rules has submitted that admittedly neither any judgment was ever dictated or pronounced nor does the same form part of the record. By merely mentioning "Appeal is allowed" without dictating or pronouncing any judgment is nullity and non est in the eyes of law. 5. Heard learned counsel for the parties and perused the record. 6. Perusal of the record indicates that the matter was taken up on 24.07.2003 before the Division Bench of this Court comprising Hon'ble S.K. Agarwal and Hon'ble V.S. Bajpai, JJ. The perusal of the order sheet dated 24.07.2003 indicates that the following order was passed by the aforementioned Bench: "Appeal is allowed". 7. 6. Perusal of the record indicates that the matter was taken up on 24.07.2003 before the Division Bench of this Court comprising Hon'ble S.K. Agarwal and Hon'ble V.S. Bajpai, JJ. The perusal of the order sheet dated 24.07.2003 indicates that the following order was passed by the aforementioned Bench: "Appeal is allowed". 7. Subsequently, the matter was taken up after nearly 2 years on 04.01.2005 before the same bench, who had passed the following order: "Judgment in this appeal has already been dictated and typed out but could not be finalised. This appeal is being returned herewith for listing it before the appropriate Court." 8. Thereafter, the matter was taken up on 02.07.2007 before the Division Bench of this Court comprising Hon'ble S.S. Kulshrestha, J. and Hon'ble B.A. Zaidi, J. and the said bench passed the following order: "Learned counsel of the appellant urged for time. Put up on 03.07.2007 for hearing along with the connected case." 9. Thereafter, the matter again came up for hearing on 26.10.2007 before a Division Bench comprising of Hon'ble Mr. Justice S.S. Kulshrestha, J. and Hon'ble Mr. Justice B.A. Zaidi, J. wherein a preliminary objection was raised by the learned counsel for the appellant regarding the jurisdiction of this Court to hear the instant appeal in the light of the fact that a final order, allowing the appeal has already been passed by the Court (Hon'ble Mr. Justice S.K. Agarwal and Hon'ble Mr. Justice V.S. Bajpai). For ready reference the order dated 26.10.2007 passed by this Court is being extracted below:- "Preliminary point was raised by the learned counsel for the appellant on the previous date of hearing that the final order for making disposal of the appeal had already been passed by the Court (Hon. Mr. Justice S.K. Agarwal and Hon. Mr. Justice V.S. Bajpai) and now this appeal cannot be re-heard. In that regard order dated 24.07.2003 passed by that Bench may be referred as under: "Hon. S.K. Agarwal, J. Hon. V.S. Bajpai, J. Subsequently another order was passed by the said Bench on 04.01.2005 to the effect that the judgment could not be finalised and so appeal was returned for listing before the appropriate Court. That order reads as under:- "Hon. S.K. Agarwal, J. Hon. V.S. Bajpai, J. Judgment in this appeal has already been dictated and typed out but could not be finalised. That order reads as under:- "Hon. S.K. Agarwal, J. Hon. V.S. Bajpai, J. Judgment in this appeal has already been dictated and typed out but could not be finalised. This appeal is being returned herewith for listing it before the appropriate Court." In the context of the earlier order dated 24.07.2003 thrust has been laid that once appeal has been allowed, it could not come for rehearing nor that bench had any jurisdiction to list it for hearing afresh before the appropriate bench. There was also number of appeals where identical orders were passed. `As the legal point was also raised before this Bench and part hearing was made, matter be placed before Hon'ble the Chief Justice for appropriate orders on the points:- (i) Should this matter be heard by appropriate Bench? or (ii) If this bench is to proceed for hearing, nomination would be required." 10. Thereafter, the Acting Chief Justice in pursuance of the order dated 26.10.2007 nominated the instant appeal to a bench presided over by Hon'ble Mr. Justice Imtiaz Murtaza. 11. It appears from the perusal of the order sheet that the matter was taken up for hearing only on 11.04.2014 by the Bench comprising Hon'ble Ravindra Singh, J. and Hon'ble Arvind Kumar Mishra-I, J and on that date, Sri Jitendra Singh Lodhi, Advocate filed memo of appearance on behalf of the appellant, Deo Raj and on his request the matter was deferred to 13.05.2014 for hearing. Later on, Sri Dilip Kumar, Advocate put in his appearance on behalf of the appellant. 12. The present matter is lingering on since 1981 and after passing of the order dated 24.07.2003 several dates were fixed for final hearing but no objection was ever raised regarding the jurisdiction of this Court. Now today, when the matter was taken up for hearing again, the question with regard to the jurisdiction of this Court to hear the matter on merits was raised by the learned counsel for the appellant on the ground that since present appeal has already been allowed by this Court on 24.07.2003, this Court has become functus officio and has no jurisdiction to proceed with the matter. 13. It is notable that this court had passed the order dated 04.01.2005 to the effect that the Judgment could not be finalized and so appeal be returned for listing before the appropriate Court. 13. It is notable that this court had passed the order dated 04.01.2005 to the effect that the Judgment could not be finalized and so appeal be returned for listing before the appropriate Court. The matter was subsequently referred to the Chief Justice on 26.10.2007 on the points that (i) Should this matter be heard by appropriate Bench? or, (ii) If this bench is to proceed for hearing, nomination would be required. On 28.04.2010, the Acting Chief Justice nominated the bench headed by Hon'ble Mr. Justice Imtiaz Murtaza. Thereafter, the appeal was posted to several dates for hearing before different Benches. 14. Perusal of the order dated 24.07.2003 further shows that neither any judgment was prepared nor dictated nor pronounced and signed on 24.07.2003, only this much was recorded "Appeal is allowed" in the order sheet. It is further relevant to note that when the matter was listed after nearly 2 years before the same bench on 04.01.2005, the bench itself observed that the judgment could not be finalized and the appeal was returned for listing before the appropriate Court. 15. At this stage, it may be relevant to refer to the provisions of Sections 353, 354 and 387 Cr.P.C., which read as under:- 353.Judgment.- (1) The judgment is every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders, - (a) by delivering the whole of the judgment; or (b) by reading out the whole of the judgment; or (c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader. (2) Where the judgment is delivered under clause (a) of sub-section (1), the presiding officer shall cause it to be taken down in short-hand , sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court. (2) Where the judgment is delivered under clause (a) of sub-section (1), the presiding officer shall cause it to be taken down in short-hand , sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court. (3) Where the judgment or the operative part thereof is read out under clause (b) or clause (c) or sub-section (1), as the case may be, it shall be dated and signed by the presiding officer in Open Court, and if it is not written with his own hand, every page of the judgment shall be signed by him. (4) Where the judgment is pronounced in the manner specified in clause (c) of sub-section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost. (5) If the accused is in custody, he shall be brought up to hear the judgment pronounced. (6) If the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted: Provided that, where there are more accused than one, and one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence. (7) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place. (8) Nothing in this section shall be construed to limit in any way the extent of the provisions of section 465. (8) Nothing in this section shall be construed to limit in any way the extent of the provisions of section 465. 354.Language and contents of judgment.- (1) Except as otherwise expressly provided by this Code, every judgment referred to in section 353, - (a) shall be written in the language of the Court; (b) shall contain the point or points for determination, the decision thereon and the reasons for the decision; (c) shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of 1860)other law under which, the accused is convicted and the punishment to which he is sentenced; (d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty. (2) When the conviction is under the Indian Penal Code(45 of 1860) and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative. (3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. (4) When the conviction is for an offence punishable with imprisonment for a term of one year or more, but the Court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment till the rising of the Court or unless the case was tried summarily under the provisions of this Code. (5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead. (6) Every order under section 117 or sub-section (2) of section 138 and every final order made under section 125, section 145 or section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision. (6) Every order under section 117 or sub-section (2) of section 138 and every final order made under section 125, section 145 or section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision. 387.Judgments of subordinate Appellate Court.- The rules contained in Chapter XXVII as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment in appeal of a Court of Session or Chief Judicial Magistrate: Provided that, unless the Appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered. 16. Thus Section 387 Cr.P.C clearly provides that the provisions of Sections 353, 354 shall apply as so far as may be practicable to the judgment in appeal of a Court of Sessions or Chief Judicial Magistrate. The present appeal has been preferred against the conviction order passed by the Sessions Judge under Section 302/34 and 307/34 IPC., therefore, in view of Section 387 Cr.P.C. the provisions of Section 353 & 354 Cr.P.C shall be applicable to this Court while exercising the power as an Appellate Court. 17. Section 353 Cr.P.C clearly provides that the judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders, - (a) by delivering the whole of the judgment; or (b) by reading out the whole of the judgment; or (c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader. 18. Sub-clause (2) of Section 353 Cr.P.C further provides that when the judgment is delivered under clause (a) of sub-section (1), the presiding officer shall cause it to be taken down in short-hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court. 19. 19. Perusal of the aforesaid provisions shows that the judgment has to be pronounced in open Court by the Presiding Officer and the Presiding Officer shall cause it to be taken down in short-hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court. 20. It is notable that in the present appeal, the judgment was neither pronounced nor it was ever signed. In the present appeal only one line order was transcribed in the order sheet that "Appeal is allowed" without the judgment being either finalized, pronounced or ever signed. It does not form part of the record. 21. Beside this, it is also relevant to notice the provisions of Chapter VII of the Allahabad High Court Rules with regard to the judgment and decree. (i) Rule (2) of Chapter VII of the Allahabad High Court Rules provides that every judgment or order delivered by the Court shall be recorded. Where a written judgment or order is delivered, such judgment or order shall form part of the record. Where the judgment or order is delivered orally in open Court it shall be taken down by a judgment Clerk and a transcript thereof shall form part of the record. (ii) Rule (3) of the aforesaid Chapter provides that the transcript of the judgment or order prepared by the judgment clerk shall be filed by him with the paper-book of the case, and thereafter according to Rule (4), it shall be sealed with the seal of the Court by the Bench Reader. 22. From the perusal of the aforesaid Rules, it appears that none of the provisions as contained in Chapter VII of the High Court Rules have been complied with. Beside this, it is also relevant to note that after 2007, the learned counsel for the appellant did not raise any objection regarding the jurisdiction of this Court to hear the appeal. Now, after more than 8 years, once again objection with regard to the jurisdiction is being sought to be raised by the appellant, only for the purpose of delaying the disposal of the appeal. The present appeal was filed way back in the year 1981 and the disposal of the appeal is being delayed under one pretext or the other. 23. The present appeal was filed way back in the year 1981 and the disposal of the appeal is being delayed under one pretext or the other. 23. It is relevant to note that according to Section 2(9) of C.P.C., "Judgment" means the statement given by the Judge of the grounds of a decree or order. 24. In this regard it is useful to quote paragraph 81 of the full bench decision of this Court in the case of M/s Shri Ram Industrial Enterprises Ltd. Vs. Union of India, AIR 1996, Page 135, which reads as under:- 81. In some of the standard texts judgment is defined as under; According to Wharton's Law Lexicon a 'judgment' is : "a judicial determination putting an end to the action by any award or redress to one party or discharge of the other as the case may be." According to Stroud's Judicial Dictionary apart from the definition of the term 'judgment' as given in the various enactments in which the term has been defined, it means; "a sentence of the law pronounced by the Court upon the matter contained in the record, and the decision must be one contained in action." In Daniel's Chancery Practice, Vol. 1, page 625 (quoted in ILR (1912) 35 Mad 1 at p. 10) 'judgment' is defined as under; "a sentence or order of the Court pronounced on hearing and understanding all the points in issue, and determining the right of all the parties to the cause or matter. It is either interlocutory or final." Black in his book on 'judgments' (as quoted in ILR (1912) 35 Mad 1 at p. 10) defined 'judgment' as; "the determination or sentence of the law pronounced by a competent Judge or Court as the result of an action or proceeding instituted in such Court affirming that upon the matters submitted for decision a legal duty or liability does or does not exist. An interlocutory judgment is one which determines some preliminary or subordinate point or plea or settles some steps, question or default arising in the progress of the cause, but does not adjudicate the ultimate rights of the parties or finally put the case out of Court." A passing reference may be made to some of the English cases also. An interlocutory judgment is one which determines some preliminary or subordinate point or plea or settles some steps, question or default arising in the progress of the cause, but does not adjudicate the ultimate rights of the parties or finally put the case out of Court." A passing reference may be made to some of the English cases also. According to ex parte Chinery, (1984) 12 QBD 343 (sic), a judgment "a decision obtained in an action, and any other decision is an order". A 'final judgment' according to the same case is "a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established." In ex parte Moore, (1885) 14 QBD 627, meaning of expression "final judgment" was expounded in the following words: "To constitute an order a final judgment nothing more is necessary than that there should be a proper litis contestatio, and a final adjudication between the parties to it on the merits." In Onslow v. Commissioner, England Revenue, (1890) 25 QBD 465, Lord Esher observed as follows; "I think we ought to give to the words 'final judgment' in this sub-section their strict and proper meaning, i.e. a judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established, unless there is something to show an intention to use the words in a more extended sense." The word "judgment" is also used in Clause 15 of Letters Patent of the Charter High Courts and there seems to be a good deal of difference of opinion between different High Courts of country regarding the exact meaning of the word. The first leading case is of Calcutta High Court. In Justice of Peace for Calcutta 1972 Beng 433, it was observed thus: "We think that 'judgment' in Cl. 15 means a decision which affects the merits of the question between the parties by determining some right or liability. The first leading case is of Calcutta High Court. In Justice of Peace for Calcutta 1972 Beng 433, it was observed thus: "We think that 'judgment' in Cl. 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final, or preliminary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined," In Tuljaram Row, ILR (1912) 35 Mad 1, it was held as follows: "The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of clause. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent. I think, too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained) e.g., an order on an application for an interim injunction, or for the appointment of a receiver is a 'judgment' within the meaning of the clause." In Re : Daya Bhai Jeevan Das, AIR 1935 Rangoon 267 (FB) a narrow interpretation was given namely that the word 'judgment' means and is a decree in a suit by which the rights of the parties at issue in the suit are determined. But this narrow interpretation has not found favour and has been disapproved by the Supreme Court in Shah Babu Lal Khimji, AIR 1981 SC 1786 (supra). 25. Section 386 Cr.P.C provides the powers of the Appellate Court. But this narrow interpretation has not found favour and has been disapproved by the Supreme Court in Shah Babu Lal Khimji, AIR 1981 SC 1786 (supra). 25. Section 386 Cr.P.C provides the powers of the Appellate Court. For ready reference Section 386(b)(i) Cr.P.C is quoted below: "(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial." 26. In the present case, there is nothing on record to show that the impugned judgment passed by the Sessions Court was ever set aside or the findings with regard to the conviction and sentence were ever reversed. We may say at the cost of repetition that the judgment was never finalized nor pronounced nor signed nor forms the part of record. The objection raised by the learned counsel for the appellant is totally misconceived and does not stand to scrutiny of law. 27. In view of the forgoing discussion the objection with regard to jurisdiction of this Court to hear the present appeal is hereby rejected. 28. Let the matter be listed in the next cause list for final hearing of the appeal. ———————