1. The only point involved in these references is whether the learned Magistrate, having signed, dated and pronounced his judgment, which did not contain the operative portion of it viz., the particulars of Sub-section (2) of Section 367 of the Code of Criminal Procedure, had power to add to that judgment by a separate order after the accused and the advocates had made their .signatures thereon and were not informed that there was an additional order to be passed in continuation of this judgment nor was the time fixed at which it shall be passed. The learned District Magistrate is of the view that this addition is a serious irregularity sufficient to vitiate the order, and the judgment should, therefore, be set aside.
2. The facts are that the accused were charged with an offence under Section 160, I.P.C. and the case was tried summarily against them. Some of the accused had admitted their guilt while others did not; and the learned Magistrate, on the evidence, carne to the conclusion that all were guilty of the said offence and passed a judgment to that effect. But he concluded the Judgment with the observation that 'in view of the circumstances, both the parties are liable to be convicted' and made his signature thereon with the date below it as though it was a judgment complete by itself.
Later on it seems, he came to know of the deficiency and within twenty minutes he came to the Bench again and passed an order specifying the offence under which each accused was convicted and also the sentence that each of them had to undergo, and then again he made his signature and also took the signatures of the parties. There is no doubt that the subsequent order, passed without notice, though in the presence of the accused, cannot by itself be a judgment.
It is not in terms made part and parcel of the previous order either. The previous order does not contemplate subsequent order. Though both orders, duly signed and pronounced put together satisfy all the essentials of Section 367, Cr. P. C., the previous order is nevertheless a judgment inasmuch as it satisfies all the conditions of Section 367(1), Criminal Procedure Code and has been pronounced as such by the Court. A judgment is the formal expression of the court's opinion arrived at after considering the evidence and arguments. It is intended to indicate the final order in the trial terminating in the conviction or acquittal of the accused. The order indeed contains points for determination, decision thereon and reasons for determination and also the expression of court's Opinion that the accused are liable to conviction; but it does not specify the offence and the punishment and was, pronounced in spite of this deficiency. Thus it was an imperfect judgment delivered by the Magistrate without due regard to the provision of Section 367(2) Criminal Procedure Code believing, though inadvertently, that that was a judgment complete by itself.
Later on, however, on a reconsideration he came to the conclusion that it was incomplete. But the question is whether it was open to him under law to supply this omission by adding to the judgment or passing a separate order without previous notice to the parties. Beyond doubt a criminal court becomes functus officio as soon as it pronounces its judgment, even though it may be imperfect or deficient in law-Section 369, Crl. Procedure Code lays down that when once the court signs its judgment it has no power to alter or review excepting correcting clerical error.
A clerical error is an error which can be explained only by considering it as a slip or mistake. Thus apart from correction of such errors as are popularly known as purely clerical, supply of omissions of consequential orders too may be permissible in certain cases as they are in the nature of clerical omissions; but certainly such omissions as would demand judicial consideration or determination are beyond the scope of that term. What is the offence for which the accused should be convicted and what should be the sentence, therefore, are matters for judicial determination and omissions of this kind can never be construed as clerical errors.
It was, therefore, not open to the Magistrate, who had already pronounced his judgment, to supply such omissions by a separate order. On the delivery of the judgment he became functus officio. Mistakes and glaring omissions of this kind ought to have been left to be remedied only by a proper forum, in accordance with law.
It cannot be said that such vital omission wasa mere irregularity, as could be remedied under Section 537, Criminal Procedure Code, notwithstandingthe express provisions of Section 369. Thus the orderpassed without jurisdiction, cannot be maintained. Asthe judgment in the case is imperfect, it is liable tobe set aside by this court in exercise of its revisionarypowers. I accordingly set aside the order and judgment of the trial Magistrate and remand the case forretrial and for passing judgment according tolaw.