1. The applicants were prosecuted alongwith Abu Turab under Sections 147 325 and 323, PenalCode. The trial Court, S. D. M. Sultanpur, convictedthe applicants and acquitted Abu Turab. Theyappealed against that decision to the SessionsJudge of Fyzabad who refused to interfere withtheir conviction of sentences, so they have comeup to this Court in revision.
2. The ground which forms the backbone ofthe revision is that the learned Sessions Judgehas not written a proper judgment in appeal.This ground is well founded and is sufficient toinvalidate the judgment.
3. The case for the prosecution in brief was asfollows: There are two step brothers Zargham AliKhan and Abu Turab who live in village Baharpur.There is no love lost between them ZaighamAli Khan let out some plots to Anand BahadurKhan who sublet them on 'betai'' to Behari. On18-3-1948, Anand Bahadur Khan and his fatherJang Bahadur Khan went to receive their sharein the produce from Behari. They were waylaidby the 16 applicants and Abu Turab Khan whoattacked them with lathis the defence was thatZaigham Ali Khan and his men damaged AbuTurab's arhar, that Abu Turab protested andthat Zaigham Ali Khan assumed the aggressiveand attacked him. So there was a fight betweenthe party of Zaigham Ali Khan and that of AbuTurab and the latter acted in self-defence.
4. The judgment of the learned Sessions Judgecovers three and a half pages. More than threepages are devoted to a statement of the case ofthe prosecution and the accused and a gist of theevidence given by the prosecution witnesses. Thereis no discussion and no reasoning in these pages.Then follow the following paragraphs:
'I have carefully perused their evidence and find thatthey have fully proved the prosecution case. The defencestory is altogether false. No damage done to Abu Turab'sfield is proved and none of the accused received even ascratch. They did not get themselves examined medicallyand from the numerous injuries grievous and simple,found on the bodies of the four victims, it is establishedbeyond doubt that the aggressors were the appellants(accused) and not the victims.
Having carefully considered the evidence and the probabilitiesof the case, I hold that the offence has beenbrought home to all the appellants beyond reasonabledoubt.'
And the appeal was accordingly dismissed. It willbe clear that in the whole judgment there is nodiscussion of the evidence of the prosecution witnesses.There is some discussion of the evidenceof the defence witnesses, but even that is meagre.The learned Sessions Judge had to find out whetherthe prosecution evidence established any caseagainst the applicants or not Unless some casehad been established, there was no need to lookinto the defence evidence because the onus liesupon the prosecution to prove its case and it doesnot lie upon the accused to prove his innocence.It is only when the prosecution has proved itscase that the onus lies upon the accused to rebutit by evidence. It was not sufficient for the learnedSessions Judge to observe that he had carefullyperused the evidence of the prosecutionwitnesses. If he had carefully perused the evidencehe should have given inherent proof of it inthe judgment itself. Instead of saying that hehad carefully perused the evidence it was betterfor him to leave it to the Superior Court to decidewhether he had done so or not. It would be amistake on the part of a Judge to think that bysimply making a claim that he has carefully perusedthe evidence, but without giving any indicationof having done so in the judgment he wouldprevent the superior Court from thinking that hehas not done so and from setting aside his findingsof fact. The Superior Court will not confirm hisfindings of fact simply because he has made aclaim of having carefully considered the evidence.Vaunting that it has given most anxious or carefulconsideration to the case does not come withgood grace from subordinate courts, serves nopurpose and is better eschewed (sic.) by all subordinateCourts.
5. The judgment must contain the points fordetermination, the findings on them and the reasonsfor the findings; otherwise it is no judgmentin law. The learned Sessions Judge should havetherefore addressed himself on the points for decisionin the appeal and given reasons for his decision.Where the evidence is clear and one sided,and there is little dispute about it, it may not benecessary for a Court to deal with it in detail andit may rest content with saying that it has givendue consideration to it, but the present case wascertainly not such a case. Here, there were twoversions put up by the two parties, there wascontradictory evidence, and the evidence for prosecutioncalled for scrutiny. Moreover the learnedSessions Judge had to deal with cases of 16 accused.He had to deal with them individually andconsider what part was played by each of them.He has not dealt with them individually at all;he had not given any thought to the questionwhether there is any who did not participate in theriot at all.
6. In in re Veerdiah A. I. R. (36) 1949 Mad.22 emphasis was laid on the duty of the Court ofconsidering the evidence against each of theaccused separately in a case under Section 147, PenalCode, and giving a definite finding regarding thepersons and part played by each. In MohammadHussain v. Emperor A.I.R. (32) 1945 Nag. 116) theHigh Court set aside the appellate judgmentbecause it did not discuss the evidence of defencewitnesses, state the points for decision and containa detailed scrutiny of the prosecutionevidence.
7. The rule that reasons must be given for thedecision is nothing but an extension of the well-knownprinciple that Justice must not only bedone but also be seen to be done. If a Judge afterhearing a case passes an order without givingreasons, it may be the correct order and he mayhave done full justice in the case but it cannot besaid that he is seen to have done justice. In orderto be seen to have done justice he must havegiven the reasons for his decision so that anyperson can see how he arrived at the decision.He must satisfy the parties to the case that hehas applied his mind to the facts and the argumentsadvanced before coming to the decision. Ifhe does not give the reasons the party againstwhom the decision goes cannot be certain that heapplied his mind to the arguments advanced byhim and the facts which support his case. Inother words though the justice may have beendone, it has not been seen to be done.
8. The giving of reasons for a decision is soimportant that it was suggested by the committeeon Minister's powers (United Kingdom) thatthe communication by a tribunal of the reasonsof its decision to the parties concerned should betreated as a principle of natural justice. If Allendisputes whether it is a rule of natural justicethat parties should always be given reasons fordecisions (Vide Law and Order by A. C. K. Allen,1st Edn., pp. 72-73) or if Paton considers that thisprinciple cannot be regarded as a rule of law (videPaton's Jurisprudence, 1st Edn., p. 277), it doesnot in any way minimize its importance. A Civilservant giving evidence before the DonoughmoreCommittee in England strongly urged that thegiving of reasons should be made voluntary. Thisprovoked the following questions from two of themembers of the Committee:
Professor Laski :
Would you not agree that to give a decisionalways without reasons is the very definition of autocracy, and that thegiving of decisions without giving the reasons, upon which they are basedis as near autocracy as you can get?
Miss Ellen Wilkinson :
Would not the Shah of Persia in his mediaevaldays strongly approved of the view you are putting forward now?
9. It is said that the civil servant had no answersto these pointed questions. Allen describingthis interview writes on p. 167 168 of his book'Law and Order':
'It is always an unhealthy thing when a Judge orquasi-Judge is reluctant to explain why he has arrived athis decision and for my part, I should apply that principleto petty Sessions, where I believe that the popularmaxim 'You're sure to be wrong if you give your reasons'is seldom in the best interest of justice.'
10. A superior Court is entitled to assistanceof the inferior Court in coming to a decision. Ifthe inferior Court has given no grounds for itsdecision, it gives absolutely no assistance to theSuperior Court.
11. The giving of reasons for its decision by aCourt is of particular importance when there isno further appeal on facts. In the present casethe judgment of the learned Sessions Judge isfinal. In revision this Court will not interferewith findings of fact save in exceptional caseswhich may be ignored. But when the lower appellateCourt has not given reasons for its findingsof fact it is not possible for this Court toadhere to this rule. It was suggested that I shouldtreat this revision as an appeal and go into thefacts myself. No doubt this can be done but thequestion is why I should deprive the applicantsof their right to have the facts scrutinised properlyby another Court. They had a right to havethe facts and the law examined thoroughly by thelower Court, and to expect that their convictionswould be quashed by it. They expected to cometo this Court only on their failure to get the desiredrelief from it. If I assume the functions ofthe lower appellate Court and go into the factsmyself it would amount to their being deprivedof their chance of acquittal at the hands of thelower appellate Court. I must, therefore, remandthe case for rehearing.
12. I have dwelt at length on the necessity ofsubordinate Courts giving reasons for their decisionbecause not only is the matter important butalso it frequently happens that lower appellateCourts instead of giving reasons for their decisionssimply content themselves with making a claim that they have given due consideration tothe evidence and the pleas urged before them bythe appellants, as in the present case. Sometimesa Subordinate Court fills pages of its judgmentwith extracts from the evidence of the witnessesone by one without any discussion of the evidenceor with very little of it. This practice also is tobe deprecated because what a judgment shouldcontain is the decision together with the reasonsthereof and not extracts from the evidence. Theevidence is on the record and it is quite unnecessaryfor a Court to reproduce extracts from it inthe judgment.
13. I allow this application, set aside thejudgment of the lower appellate Court and remandthe appeal to the Sessions Judge, Lucknow,for rehearing and disposal. The applicants willremain on bail.