Ram Labhaya, J.
1. The State of Assam has appealed from an order o Mr. B. R. Das, Magistrate 1st Class, Mangaldai, dated 25-8-1952 by which he acquitted Naramud-din Ahmed and Roisuddin Kabiraj rinding them nut guilty of offences with which they had been charged. Roisuddin has died. The appeal against him has abated. It is now directed against the acquittal of Narumuddin Ahmed alone.
2. The proceeding was initiated on a complaint by Md. Foimuddin Gaobura. The complaint was Under Sections 342/161/381, IPC It embodies a very brief statement of the prosecution case. It discloses that the two accused Naramuddin and Roisuddm called him (complainant) from Tengani Hatkhoia oil 5-3-1951 tied his hands and kept him in confinement for about an hour in front of the shophouse belonging to one Dhuler Pathak. Roisuddin, accused, got Rs. 200/- m cash from his father Jaimuddin and released him.
3. The complaint was put in on 7th May 1951, the occurrence was alleged to have taken place at 5-5-1951 which was a Saturday. The complainant was examined on his complaint. He then stated that the accused had called him to the courtyard of Pathak. They had two constables with them whom they asked to arrest him. .Hiis hands were then tied down with a rope. Faimuddin's father followed him to this place. He was called away on one side by the two accused.
They demanded Rs. 200/- from him in consideration of his release. Out of fear, his father paid Rs. 200/- to Roisuddin and also served tea and sweets to the two accused. He was then released and went away. He stated that his witnesses were Jaimuddin, Toimuddin, Hafizuddin, Jalal and others.
4. The Magistrate held a preliminary enquiry on 12th May at Tengani. He examined witnesses produced by the complainant, some court witnesses, the relevant papers and also the place of occurence. He also directed the complainant to produce other witnesses on 14th May, 1951. On 14th May, the complainant expressed his inability to produce any more witnesses stating that Roisuddin was threatening the witnesses with harm & they were afraid of coining to Court. He then ordered the accused to be summoned and wrote to the Superintendent of Police, Darrang, for sanctioning the prosecution of A. S. I. Naramuddin Ahmed.
On 3-7-1952, the prosecution case was closed. The accused were examined. They declined to produce any witnesses. The case was fixed for argument on 19-7-1952. Arguments were heard on this date and 31st July was the date fixed for judgment. On three subsequent dates the judgment could not be delivered. It was not ready. It was finally delivered on 25-8-1952 when the. accused were acquitted.
5. The Criminal Law Amendment Act, 1952 was passed on 28-7-1952 after the arguments in the case were heard. Mr. Medhi, the learned Govt. Advocate contends that on 28-7-1952 when the Criminal Law Amendment Act, 1952 came into force, the case was pending in the court of the Magistrate as judgment had not yet been delivered. He refers first to Section 7 of the Act which provides as follows:
Notwithstanding anything contained in the Criminal Procedure Code, 1898 (Act 5 of 1893) or in any other law, the offences specified in Sub-section (1) of Section 6 shall be triable by Special judges only.' He points out that Nareimuddiri, Assistant Sub-Inspector had been charged Under Section 164, IPC and also Under Section 161, IPC The offence Under Section 161 which was the subject-matter of the trial was one of the offences specified in Sub-section (1) of Section 6 and had become triable by a Special Judge only on 28th July. The learned Magistrate thus lost jurisdiction, The judgment he delivered therefore is without jurisdiction.
He also argued that Section 7 of the Act has to be read with Section 10 which provides that all cases triable by special Judge Under Section 7 which immediately before the commencement of this Act were pending before any Magistrate shall on such commencement be forwarded for trial to the Special Judge having jurisdiction over such cases.
His contention is that the case was pending before the trial Magistrate immediately before the commencement of the Criminal Law Amendment Act. On the commencement of the Act, he was, under an obligation to forward the case for trial to the Special Judge having jurisdiction over 'he case. The soundness of this contention has been, challenged by Mr. Das, the learned Counsel for Naramuddin Ahmed first on the ground that the trial had been concluded before the Criminal Law Amendment Act came into force and secondly on the ground that in the circumstances of this case, Section 10 of the Act has no application.
He points out that up to the date of delivery of judgment, no Special Judge had been appointed by the Provincial Government Under Section 6 for the area in question. The learned Magistrate in the circumstances was under no obligation to wait till the Government decided to appoint a Special Judge for the area which it was not bound to do. lie also urges that Section 7 has no retrospective effect.
6. The first question that arises for determination is whether the case should be treated as pending for trial in the court of the trial Magistrate on die date the Act came into force. All that remained to be done in the case was the delivery of judgment. The learned Government Advocate has relied on'B. ft. Lawrence v. Emperor' AIR 1933 PC 218 (A) for showing that the trial could not be taken as concluded before delivery of the judgment. In the case which the learned Government Advocate has relied on, their Lordships held that
it was essential principle of criminal law that die trial of an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings, including, sentence. An alternation and recording of the sentence in the absence of the accused is not legal.
The limited question before their Lordships was whether the alternation and the recording of the sentence in the absence of the accused was legal. The view that was enunciated has been reproduced above. The possibility of cases of misdemeanour being tried in the absence of the accused under certain circumstances was recognised. The proposition laid down is somewhat limited in scope.
The larger question whether the trial invariably ended with the delivery of judgment even though it may be a judgment of acquittal was not considered. The decision rests on a general principle,, though the peculiar circumstance in the case was that the sentence originally passed had been varied in the absence of the accused.
7. The pronouncement of their Lordships if the Privy Council does however lend support to the-contention raised that the trial is concluded only when the sentence is pronounced. Delivery of judgment therefore would be a part of the trial, The fact that it is a judgment of acquittal should not make any difference.
8. In 'Queen Empress v. McCarthy', 9 All 420 (B) it was held that no trial can be, legally-speaking, concluded until judgment and sentence ,he passed, and the trial of a case referred by a Sessions Judge to the High Court Under Section 307, Criminal P, C, remains open for the High Court to conclude and complete, either by maintaining the verdict of the jury and causing judgment of acquittal to be recorded, or by setting aside the verdict of; acquittal, and causing conviction and sentence to be entered against the accused.
This case covers both sides of the question, According to this decision, the judgment and he sentence are both parts of the trial. In this case, the question was whether the trial by jury had been concluded when the jury delivered their verdict under Xl. (6) of Section 8 of Act III at 1884. Straight dealing with this question observed as follows:
I do not think that trial by jury or any trial can be legally speaking, concluded until judgment and sentence are passed.
The question as to when the trial in cases not triable by jury is concluded was not directly before the Court though opinion on that point has also been expressed. In 'Public Prosecutor, Madras v. Chokaliiiga Ambalam', A1K 1929 Mad 201 (CJ, Reilly J. had that the pronouncing of judgment is no part of the trial and therefore an application for transfer made after the case is closed but before the pronouncing of judgment was not made in the course of the trial.
Refusal on the part of the Court to adjourn the case at that stage did not violate the provisions of Section 526(2). The learned Judge referred to Sections 366, and 497 of the Code as justifying the view that the word 'trial' as used in the Code has the connotation of the closure of the prosecution and the defence cases before the judgment is pronounced. This decision was given when Clause (8) of Section 526, Criminal P. C, permitted an intimation of the intention of the accused to move the High Court to be given in the course of an enquiry or trial or before the commencement of hearing of any appeal.
Clause (8) has subsequently been amended. It now requires intimation to be given at any stage before the defence closes its case. When intimation could be given in the course of an enquiry or trial, it was held that the trial ended before the judgment was given. The provisions contained in Sections 366 and 497 were relied on in support of this view,
9. Section 366 relates to the mode of delivery of judgment in criminal trials. Clause (2) of Section 366 provides that the accused shall, if in custody, be brought up, or if not in custody, be required by the Court to attend to hear judgment delivered, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only, or he is acquitted, in either of which cases, it may be delivered in the presence of his pleader. Clause (3) lays down that
no judgment delivered by the 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...
Though the delivery of judgment in the presence of the accused or his pleader may not vitiate the trial, ii. still is an irregularity. The underlying principle of the section is that the judgment has to be deli- quitted.
Clause (4) of Section 497 does use the words 'conclusion of the trial' in the sense of closure of the prosecution and the defence cases, and permits the Court, between the conclusion of the trial in that sense and before judgment to allow bail to the accused if there are reasonable grounds for believing that he is not guilty of the offence he is accused of. Here the context clearly indicates what the legislature meant by the use of the words 'conclusion of the trial'.
Where the meaning is so clear from the context no difficulty arises in construing the words. But it still remains a question whether the same meaning Can be given to tile words 'conclusion of die trial' for all purposes under the Act. For the purpose of Clause (4; or Section 497, Criminal P. C, the delivery of judgment obviously was not treated as a part of the trial but the reason probably is that legislature intended to give tile Court the power to allow bail before pronouncing judgment even though otherwise tire case was closed.
10. From the scheme of the Criminal Procedure Code, it appears that the trial cannot normally be regarded as concluded till the accused is acquitted or convicted. Final order whether of conviction or acquittal disposes of the case. It remains pending till that stage is reached. Chapter 20 of die Code prescribes procedure for the trial of summary cases. Section 245 requires the Magistrate after consideration of the relevant material to record an order of acquittal or of conviction.
If he decides not to proceed Under Section 349 or Section 562, he has to pass a sentence according to law. Section 258 embodies the same requirements in regard to the trial of warrant cases. The procedure for trials before the High Court & the Court of Sessions is laid down in Chap. 23 of the Code. Part E of the Chapter covers the trial up to the stage of closing of the prosecution and the defence cases. Part F relates to the conclusion of trial in cases tried by Jury and part H deals with conclusion of trial in cases tried with assessors.
A clear distinction is made between closure of respective cases of parties and the conclusion of the trial. In both cases, the trial concludes with the judgment Under Sections 306 and 309. In the absence of express provision to the contrary, the conclusion that is induced by the scheme of the Code is that the trial cannot be regarded as concluded so long as the judgment is not delivered and the accused sentenced or acquitted. That seems to be even the common sense view of the matter.
11. The trial commences in all cases dealt with above in the presence of the accused. It is to continue in the presence of the accused. The judgment also has to be delivered in his presence except where the presence of the accused is dispensed with. All this would point to the conclusion that the delivery of judgment is a necessary part of the trial. The conclusion reached by an examination of the entire scheme of the Code is supported by the Privy Council decision referred to above.
Their Lordships did not consider it necessary to refer to the relevant provisions of the Code. Their decision rests on the general and well-recognised principle of criminal law applicable to the trial of indictable offences. That principle underlies the scheme of the Code also. It may be stated therefore that a trial is concluded normally when the judgment is delivered unless the context indicates that the words 'conclusion of the trial' are used by the Legislature in a different or limited sense.
In this sense, the trial in the course of the trial Magistrate was not concluded when the Criminal Law Amendment Act came into force.
12. Section 10 of the Act provides for the transfer of cases pending in the courts of Magistrates to the court of the Special Judges appointed under the Act. Cases which were pending in the courts of Magistrates for trial had to be transferred. The question that arises is, in what sense the expression 'trial' is used in this section. The case would remain pending till the judgment is delivered but can it be said that the case is pending for trial where both parties have closed their respective cases and the arguments have been heard.
The context does not indicate the intention of the Legislature clearly. It would in these circum- stances, be safe to apply the general principle, according to which the trial continues till the judgment is delivered. The case is pending for trial in the sense in which all cases would be pending for trial alter its commencement. What stage he trial has reached would not be very material. Strictly speaking, therefore, it may be held that he case was liable to transfer to the Court of the Special Judge.
13. The next question that arises is whether the delivery of judgment by the learned trial Magistrate himself vitiates the trial. Section 6 of the Act specifies the offences which are triable by the Special Judge when appointed. It also conters on the Provincial Government the power to appoint Special Judges for different areas. It, however, does not create any obligation to appoint a Judge or judges for any within any definite period. No judge may be appointed for a particular area or at any particular time.
Till the delivery of the judgment in this case, no special Judge had been appointed for the area over which the learned trial Magistrate exercised jurisdiction. He could not therefore transfer the case to any Special Judge as there was no Special Judge competent to hear the case. The obligation to transfer the case to the Court of the Special Judge could become possible of discharge only when a Special Judge was appointed.
There may be very few cases in a particular area and the appointment of the Special judge may not be considered necessary. Pending trials therefore would not be stayed for an indefinite period in the expectation that the Provincial Government may at sometime appoint a Special Judge for the area. If a Special Judge was intended to be appointed for every area, it would have clearly laid down in Section 6. Again if that was the intention, there would have been an express direction in Section 10 that the trial in pending cases would be stayed at the stage which it had reached on the day the Act came into force pending appointment of Special Judge.
In the absence of such provisions, it cannot be (.aid that the trial Magistrate in this case was under an obligation to wait indefinitely for the appointment of a Special Judge. If there was no such obligation on him, it is not possible to say that he had lost his jurisdiction and that the judgment delivered by him is now a nullity on the ground that it is without jurisdiction. The main contention of the learned Govt. Advocate that the impugned order is, without jurisdiction therefore must fail.
14. On facts, no case has been made out for setting aside the order of acquittal so far as Naramuddin is concerned, the charge against him was that he as a public servant accepted or obtained or agreed to accept and attempted to obtain a gratification of Rs. 200/- from the complainant's father. In the alternative he was charged Under Section 164, IPC for abetting the commission of the offence Under Section 162, IPC by accused Roisuddin.
(His Lordship then discussed the evidence and concluded;) The evidence that the prosecution have produced in regard to the actual occurrence leaves a great deal to be desired and it cannot be said that this evidence establishes the case beyond any reasonable doubt. The accused started with the presumption of innocence in his favour. That presumption has been considerably strengthened by the view that the learned Magistrate has taken of the evidence in the case. This view has not been shown to be unreasonable or even erroneous. The indication of mistake should be obvious and the evidence should clearly exclude the possibility of innocence before an order of acquittal may be interfered with. This is not the case here. There is therefore no justification for setting aside the order of acquittal on the merits. The appeal is dismissed.
Sarjoo Prosad C.J.
15. For the reasons stated in the judgment just delivered, 1 agree that Sections 7 and 10, Criminal Law Amendment Act, 1952, did not affect the jurisdiction of the trial Magistrate to deliver judgment in the case, when there was no Special Judge appointed to whom the case could be transferred. On facts also, in my opinion, no adequate ground has been made out for our interference with an order of acquittal.