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Orissa High Court · body

2016 DIGILAW 542 (ORI)

STATE OF ORISSA v. MAHESWAR SAHU

2016-07-21

S.PUJAHARI

body2016
JUDGMENT : S. Pujahari, J. - This is a Reference made by the learned District & Sessions Judge Sambalpur under Section 395 of the Code of Criminal Procedure (for short "Cr.P.C.") for decision of this Court. 2. The questions those have been posed under the Reference are as follows:- (1). Can a successor Judge hear the convict on the question of sentence and sign and pronounce the judgment written by his predecessor who has held the accused guilty and convicted him ? (2). In view of the specific bar of Section 326(3) Cr.P.C. can a case be tried denovo after the accused is held guilty and convicted. (3). In view of the specific provisions contained in Sections 255(3) 262 and 264 Cr.P.C. is the hearing on the question of sentence necessary keeping in view the direction given in G.L.7 of 74 (Crl.). 3. In the context I have heard Shri G.N. Mohapatra the learned counsel engaged in this case as Amicus Curiae as well as the learned Addl. Standing counsel for the State. 4. It is apposite at the outset to have a reference to Section 35 of Cr.P.C. according to which subject to the other provisions of the Cr.P.C. the powers and duties of a Judge or Magistrate may be exercised or performed by his Successor in his office. In case of doubt as to who is the Successor in office of the Additional or Assistant Sessions Judge or in the office of any Magistrate it is the Sessions Judge on sessions side and the Chief Judicial Magistrate or the District Magistrate as the case may be on magisterial side who are competent to determine the same by a written order. 5. Section 326 of Cr.P.C. authorizes the Successor in office to act on the evidence recorded wholly or in part by his Predecessor in an inquiry or trial. The said Section is reproduced here below :- 326. 5. Section 326 of Cr.P.C. authorizes the Successor in office to act on the evidence recorded wholly or in part by his Predecessor in an inquiry or trial. The said Section is reproduced here below :- 326. Conviction or commitment on evidence partly recorded by one [Judge or Magistrate] and partly by another (1) Whenever any [Judge or Magistrate] after having heard and recorded the whole or any part of the evidence in an inquiry or a trial ceases to exercise jurisdiction therein and is succeeded by another [Judge or Magistrate] who has and who exercises such jurisdiction the [Judge or Magistrate] so succeeding may act on the evidence so recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself: Provided that if the succeeding [Judge or Magistrate] is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice he may resummon any such witness and after such further examination cross-examination and re-examination if any as he may permit the witness shall be discharged. (2) When a case is transferred under the provisions of this Code [from one Judge to another Judge or from one Magistrate to another Magistrate] the former shall be deemed to cease to exercise jurisdiction therein and to be succeeded by the latter within the meaning of sub-section (1). (3) Nothing in this Section applies to summary trials or to cases in which proceedings have been stayed under Section 322 or in which proceedings have been submitted to a superior Magistrate under Section 325. [Underlining by me] 6. Now coming to Sections 353 and 354 of Cr.P.C. which have direct bearing on the present questions while Section 353 speaks of the mode and manner of delivery and pronouncement of the judgment Section 354 enumerates the body requirements of the same in a criminal case. In view of Clause (c) of sub-section (1) of Section 354 of Cr.P.C. a judgment of conviction is not complete without specific mention of the punishment to which the convict is sentenced. Of course where the convict is dealt with as per the provisions of Section 360 Cr.P.C. or the Probation of Offenders Act 1958 the question of sentence does not arise and in that case an order regarding release of the convict as per those provisions will suffice the completeness of the judgment. Of course where the convict is dealt with as per the provisions of Section 360 Cr.P.C. or the Probation of Offenders Act 1958 the question of sentence does not arise and in that case an order regarding release of the convict as per those provisions will suffice the completeness of the judgment. 7. Sub-sections (5) (6) and (7) of Section 353 of Cr.P.C. which are relevant for the purpose are reproduced here below:- 353. Judgment - (1) xxxxxx xxxxxxx (2) xxxxxx xxxxxxx (3) xxxxxx xxxxxxx (4) xxxxxx xxxxxxx (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) xxxxx xxxxxxx xxxxxxx 8. It is thus made explicit by the provisions of Section 353 of Cr.P.C. as quoted above personal attendance of the accused before the Court to hear the judgment pronounced is not necessary where it is an acquittal judgment or where personal attendance of the accused has been dispensed with and the sentence is one of fine only. The proviso to sub-section (6) as it exists was not there in the old Cr.P.C. 1898 and the same has been incorporated in the Cr.P.C. 1973 with a view to avoid undue delay in the disposal of the case on account of absence of one or more of the accused persons before the Court. The proviso to sub-section (6) as it exists was not there in the old Cr.P.C. 1898 and the same has been incorporated in the Cr.P.C. 1973 with a view to avoid undue delay in the disposal of the case on account of absence of one or more of the accused persons before the Court. The proviso if given a plain interpretation and considered from the view point of the legislative intention can be construed as a non-abstante clause and if it is read conjointly with sub-section (7) any omission or deficiency in giving prior notice to the accused persons or their pleaders regarding the date fixed for pronouncement of judgment will be treated as a mere irregularity curable under Section 465 of Cr.P.C. The vital question which needs to be considered under Section 465 of Cr.P.C. is whether a failure of justice has in fact been occasioned by any error omission or irregularity in the proceeding of the case so as to invalidate a judgment or order passed therein. Now reverting to the proviso to sub-section (6) of Section 353 of Cr.P.C. where there are more than one accused person if despite due notice regarding the date fixed for pronouncement of judgment one or more of the accused persons do not attend the Court on the date so fixed the Court can pronounce the judgment notwithstanding his their absence. It is redundant to mention that the proviso referred to above has no application to a case where the accused is solo in number. 9. The provisions which next invite attention in the context are those under Sections 235 236 and 248 of Cr.P.C. in accordance with which judgment is to be passed or delivered in Sessions Trial cases and warrant trial cases. Those provisions are quoted here below:- 235. Judgment of acquittal or conviction. (1) After hearing arguments and points of law (if any) the Judge shall give a judgment in the case. (2) If the accused is convicted the Judge shall unless he proceeds in accordance with the provisions of Section 360 hear the accused on the question of sentence and then pass sentence on him according to law. 236. Previous conviction. (1) After hearing arguments and points of law (if any) the Judge shall give a judgment in the case. (2) If the accused is convicted the Judge shall unless he proceeds in accordance with the provisions of Section 360 hear the accused on the question of sentence and then pass sentence on him according to law. 236. Previous conviction. In a case where a previous conviction is charged under the provisions of sub-section (7) of Section 211 and the accused does not admit that he has been previously convicted as alleged in the charge the Judge may after he has convicted the said accused under Section 229 or Section 235 take evidence in respect of the alleged previous conviction and shall record a finding thereon: Provided that no such charge shall be read out by the Judge nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it unless and until the accused has been convicted under Section 229 or Section 235. 248. Acquittal or conviction. (1) If in any case under this Chapter in which a charge has been framed the Magistrate finds the accused not guilty he shall record an order of acquittal. (2) Where in any case under this Chapter the Magistrate finds the accused guilty but does not proceed in accordance with the provisions of Section 325 or Section 360 he shall after hearing the accused on the question of sentence pass sentence upon him according to law. (3) Where in any case under this Chapter a previous conviction is charged under the provisions of sub-section (7) of Section 211 and the accused does not admit that he has been previously convicted as alleged in the charge the Magistrate may after he has convicted the said accused take evidence in respect of the alleged previous conviction and shall record a finding thereon: Provided that no such charge shall be read out by the Magistrate nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it unless and until the accused has been convicted under sub-section (2) 10. Now it is required to examine the above quoted provisions in juxtaposition with the proviso to sub-section (6) of Section 353 of Cr.P.C. To reiterate the said proviso was newly added in the Cr.P.C. 1973 with a view to avoid delay in pronouncement of judgment making it permissive for the Court to pronounce judgment even in a conviction case notwithstanding absence of one or more of the accused persons before the Court. It can not be said that the Legislature while incorporating the said new proviso remained oblivious of the provisions under Sections 235(2) or 248(2) Cr.P.C. regarding hearing on the question of sentence. To put in other words the said proviso impliedly carries a force of forfeiture of the right of the absentee accused to participate in the hearing on the question of sentence in the cases tried under Sessions procedure and warrant procedure and it consequently follows that the absentee accused on being produced or when attends the Court shall suffer the sentence awarded in his absence. 11. The cases in which only one accused faces the trial and stands convicted having not been covered by the proviso to sub-section (6) of Section 353 of Cr.P.C. the Court cannot pronounce judgment in those cases in absence of the sole accused. 12. The proviso to sub-section (6) of Section 353 Cr.P.C. has also no application to the conviction cases in which one or more of the accused persons have been charged with previous conviction to be dealt with under the provisions of Section 236 or sub-section (3) of Section 248 of Cr.P.C. as the case may be. A plain reading of those provisions especially the proviso to Section 236 of Cr.P.C. and the proviso to sub-section (3) of Section 248 of Cr.P.C. makes it explicit that unless and until the accused has been convicted under Section 229 or Section 235 Cr.P.C. in a Sessions trial or under subsection (2) of Section 248 of Cr.P.C. in a warrant trial the charge of previous conviction under the provisions of sub-section (7) of Section 211 Cr.P.C. can not even be read out by the Judge Magistrate to him much less be dealt with. The charge of previous conviction being a separate one providing for enhancement in the punishment further proceeding in that regard has been prescribed under Section 236 and sub-section (3) of Section 248 of Cr.P.C. Uptil completion of that additional proceeding the proceeding of the main case remains pending as against the accused (convict) who has been charged with previous conviction. 13. From the above discussion and keeping the proviso to sub-section (6) of Section 353 of Cr.P.C. in the centre stage this Court arrives at the opinion 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 pronounce the judgment subject to the exception that if any of the absentee accused persons or the sole absentee accused has been charged with previous conviction the case on being split up shall remain pending against them for the obvious reason that no sentence can be passed against them without resorting to the provisions under Section 236 of Cr.P.C. or under sub-section (3) of Section 248 of Cr.P.C. as the case may be. 14. Now adverting to the question No.1 under the Reference it is pertinent to glance through the observation in paragraph-26.11 of the 41st Law Commission Report in the context of the amendment to Section 366 of the Cr.P.C. 1898 corresponding to Section 353 of the Cr.P.C. 1973 which reads as follows:- 26.11 we note that there is no provision in the Code as to pronouncement of a judgment written by a predecessor. We considered the question whether any provision on the subject should be inserted. In our view it is not proper that in criminal cases a judge should pronounce a judgment written by his predecessor. He can no doubt make use of the material contained in the (draft) judgment prepared by his predecessor. But in that case he is himself responsible for the contents of the judgment. 15. Emphasizing the sanctity of judgment and the significance attached to its pronouncement the Apex Court in the case of Surendra Singh v. State of U.P. AIR 1954 S.C. 1994 observed as follows:- 4. Delivery of judgment is a solemn act which carries with it serious consequences for the person or persons involved. 15. Emphasizing the sanctity of judgment and the significance attached to its pronouncement the Apex Court in the case of Surendra Singh v. State of U.P. AIR 1954 S.C. 1994 observed as follows:- 4. Delivery of judgment is a solemn act which carries with it serious consequences for the person or persons involved. In a criminal case it often means the difference between freedom and jail and when there is a conviction with a sentence of imprisonment it alters the status of a prisoner from an under trial to that of a convict also the term of his sentence starts from the moment judgment is delivered. It is therefore necessary to know with certainty exactly when these consequences start to take effect. For that reason rules have been drawn up to determine the manner in which and the time from when the decision is to take effect and crystallize into an act which is thereafter final so far as the Court delivering the judgment is concerned. xxxxxxx xxxxxxx xxxxxxx 10. In our opinion a judgment within the meaning of these Sections is the final decision of the Court intimated to the parties and to the world at large by formal pronouncement or delivery in open Court. It is a judicial act which must be performed in a judicial way. Small irregularities in the manner of pronouncement or the mode of delivery do not matter but the substance of the thing must be there: that can neither be blurred nor left to inference and conjecture nor can it be vague. All the rest the manner in which it is to be recorded the way in which it is to be authenticated the signing and the sealing all the rules designed to secure certainty about its content and matter - can be cured but not the hard core namely the formal intimation of the decision and its contents formally declared in a judicial way in open Court. xxxxx xxxxx xxxxxx 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. 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. xxxxxx xxxxxxx 12. Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of locus poenitentioe and indeed last minute alterations often do occur. Therefore however must 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. xxxxxxx xxxxxxx xxxxxxx 16. A question similar to the Question No.1 under the present reference came up for consideration before a two Judge Bench of the High Court of Delhi in the case of Jitender alias Kalle v. State 2013 CRI.L.J. (NOC) 75 (DEL.). Referring to the aforesaid pronouncement of the Apex Court besides the decisions of some High Courts and discussing the relevant provisions of the Cr.P.C. including those under Sections 326 and 353 of Cr.P.C. the High Court of Delhi answered the question in negative with an observation interalia that Section 326 of Cr.P.C. 1973 only enables a successor Judge or Magistrate to act on the evidence recorded by his predecessor in office and then proceed to pronounce the judgment and that it does not empower the successor Judge or Magistrate to merely 'announce' a 'judgment' written by his predecessor. 17. Although in Civil Procedure Code there is a specific provision under Order-XX Rule-(2) making it mandatory for a successor Judge to pronounce a judgment written but not pronounced by his predecessor there is no such provision much less in specific in the Cr.P.C. 1973 at least enabling the successor to pronounce a judgment written by his predecessor. 17. Although in Civil Procedure Code there is a specific provision under Order-XX Rule-(2) making it mandatory for a successor Judge to pronounce a judgment written but not pronounced by his predecessor there is no such provision much less in specific in the Cr.P.C. 1973 at least enabling the successor to pronounce a judgment written by his predecessor. To reiterate Section 326 of Cr.P.C. only enables a Judge or Magistrate to act on the evidence recorded wholly or in part by his predecessor at his discretion. 18. There may be cases be not very often alike the one under the present Reference that though the judgment upto the finding of guilt is prepared and signed by the Judge but kept undelivered pending hearing on the question of sentence due to absence of the sole accused and by the date the convict was produced before the Court the Judge who prepared and signed the judgment upto the stage of recording the finding of guilt has ceased to be in office due to transfer or other reasons. Of course in the case under the present Reference which was tried under summary procedure hearing on the question of sentence was not required but absence of the convict was certainly an impediment for pronouncement of the judgment in view of Section 353 of Cr.P.C. If the same Judge Magistrate who prepared the judgment continues in office till the convict appears or is produced on the strength of warrant or other process there remains nothing to ponder upon and judgment if already completed with award of sentence can well be pronounced then and there and if hearing on the question of sentence is necessary then on completing further exercise in that regard the judgment can be completed and pronounced by the same Judge. But if the convict did not appear or could not be produced during the tenure of the same Judge in the Office there arises the legal intricacy before his successor in office when the convict appears or is produced before him. But if the convict did not appear or could not be produced during the tenure of the same Judge in the Office there arises the legal intricacy before his successor in office when the convict appears or is produced before him. There being no specific provision under the Cr.P.C. 1973 to authorise or permit the successor Judge Magistrate to pronounce the judgment written by his predecessor the Legislature is deemed to have denied that permission or authority to the successor notwithstanding the provision under Section 35 of Cr.P.C. It is worthwhile to mention that Section 326 of Cr.P.C. though enables the successor Judge Magistrate to act upon the evidence recorded by his predecessor in an enquiry or trial remains silent as to the power of such successor in respect of the judgment if any written but not pronounced by his predecessor in office. As vividly discussed by the Apex Court in the case of Surendra Singh (supra) pronouncement of a judgment is a judicial act expressing the judicial mind of the Court with intention to make it operative. A judgment though prepared but not pronounced remains as a draft only amenable to alteration with the change of the mind of the author. In that view of the pronouncement and for the discussion made herein above the inevitable answer to the question no.(1) under the Reference is that the successor Judge Magistrate cannot pronounce the judgment written by his predecessor (whether signed or not signed) regardless the judgment being that of acquittal or conviction. The successor Judge Magistrate in that case has to pronounce his own judgment in following the provisions under Section 326 of Cr.P.C. 19. In so far as the question no.(2) under the Reference is concerned subsection (3) of Section 326 of Cr.P.C. makes the bar explicit and absolute that the enabling provision under sub-section (1) of the said Section shall have no application to a case in which summary procedure was adopted by the predecessor Judge Magistrate. In view of the answer already given to the question no.(1) coupled with the bar contained under sub-section (3) of Section 326 of Cr.P.C. there is no other alternative for the successor Judge Magistrate than to go for a de novo trial in such a case. 20. In view of the answer already given to the question no.(1) coupled with the bar contained under sub-section (3) of Section 326 of Cr.P.C. there is no other alternative for the successor Judge Magistrate than to go for a de novo trial in such a case. 20. Now coming to the question no.(3) under the Reference it be mentioned at the outset that while requirement of hearing on the question of sentence has been specifically mandated in Sessions trial and warrant trial cases where the accused is held guilty no such requirement has been prescribed much less mandated in respect of summons cases or the cases tried under summary procedure. This is a legislative discrimination made with consciousness keeping in view that summons cases are those cases which are punishable with imprisonment for not more than two years and in the cases tried summarily no sentence of imprisonment for a term exceeding three months can be passed in the event of conviction. In that view of the scheme of trial of those cases contemplated under the Cr.P.C. hearing on question of sentence is not necessary in the event of conviction of an accused in those trials. A reading of General Letter No.7 of 1974 of the Cr.P.C. as referred to by the learned District Judge Sambalpur does not reveal the same to be in conflict in any manner with the provisions under Sections 255 264 and 266 of Cr.P.C. The instructive portion of the said letter is quoted here below:- 3. In view of the above the Court wish to make it clear that there is no conflict between the instructions conveyed in G.L.2 of 1970 and the decision reported in 1972 C.L.T. page 506. The subordinate criminal courts should in all cases take suitable measures in advance to secure the attendance of the accused. They may deliver the judgment in the absence of the accused in cases contemplated in subsection (6) of Section 353 of the Criminal Procedure Code and the proviso thereto and also cases where there are justifying reasons for so doing. 21. There being nothing to entertain any doubt about the import of the aforesaid General Letter of this Court vis-a-vis the provisions of Cr.P.C. quoted by the learned District Judge Sambalpur no answer to the question no.(3) under the Reference is occasioned. 22. The Reference is decided accordingly. 23. 21. There being nothing to entertain any doubt about the import of the aforesaid General Letter of this Court vis-a-vis the provisions of Cr.P.C. quoted by the learned District Judge Sambalpur no answer to the question no.(3) under the Reference is occasioned. 22. The Reference is decided accordingly. 23. While parting with this Court appreciates the sincere efforts made by Shri G.N. Mohapatra learned counsel engaged in this case as Amicus Curiae in rendering valuable assistance to the Court in the matter. The Registry is directed to circulate a copy of this order to all the subordinate Courts in the State for future guidance.