Iqbal Ahmad, J.
1. The decision of the question referred to this Bench depends on the interpretation of Section 408, Criminal P.C., and in particular on the answer to the question whether the trial of a case, in accordance with the provisions of the Code, extends to the time of the delivery of judgment or terminates at some stage before the Judge or the Magistrate proceeds to write or to deliver his judgment. The relevant portion of Section 408 of the Code is as follows:
Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or other Magistrate of the First Glass...may appeal to the Court of Session.
2. The provisos to that section are immaterial for the purposes of the present judgment. In order to appreciate the respective contentions of the parties relating to the true interpretation of the word 'trial' in this section, it is necessary to state the following facts : The appellants before us were committed to the Court of Session to stand their trial in a case known as the Railway Ticket Forgery Conspiracy Case. Their trial commenced in the Court of Session on 12th August 1936. The presiding officer of the Court was Mr. Crofts, I.C.S., who was then an Assistant Sessions Judge. The evidence for the prosecution and for the defence was concluded on 21st November 1936, and the arguments in the case were finished on 2nd December 1936, and the learned Judge delivered his judgment on 5th December 1936. He convicted the appellants before us. After the conclusion of the arguments and before the delivery of judgment, viz. between 3rd and 5th December 1936, Mr. Crofts was informed by the Local Government that he had been made an Additional Sessions Judge with effect from the date that he commenced the trial of the case. This order of the Local Government, though retrospective in terms, could, in view of the provisions of Section 39 of the Code, take effect only from the date on which the said order was communicated to Mr. Crofts. Section 39 runs as follows:
39. (1) In conferring powers under this Code the Local Government may, by order, empower persons specially by name or in virtue of their office or classes of officials generally by their official titles. (2) Every such order shall take effect from the date on which it is communicated to the person so empowered,
3. It is therefore dear that till the conclusion of the arguments, Mr. Crofts was seized of the case in his capacity as Assistant Sessions Judge but he wrote and delivered the judgment as an Additional Sessions Judge. The appellants before us filed an appeal in this Court against their conviction and at the time of the hearing of the appeal, a preliminary objection was raised by the learned Counsel for the Bail-way. He argued that as the trial was held by Mr. Crofts, as Assistant Sessions Judge, the appeal did lie in the Court of Session and not in this Court. His argument was that the trial came to an end when the arguments were finished in the case and that the writing or the delivery of the judgment was no part of the trial, and therefore the appellants had no right of appeal to this Court. The learned Counsel for the appellants on the other hand contended that the word 'trial' in Section 408 includes the judgment and in particular the punishment inflicted on the party convicted and he accordingly argued that as the judgment was delivered by Mr. Crofts after he had been made an Additional Sessions Judge, the trial, or at any rate part of the trial must be deemed to have been held by an Additional Sessions Judge, and as such the appeal lay to this Court. The decision of the question raised depends on the interpretation of the words 'convicted' on a trial held by an Assistant Sessions Judge' in Section 408, Criminal P.C. The words quoted above which occur in Section 408 were judicially interpreted by the Madras High Court in Tirumala Venkata Reddy v. Ramayya (1928) 15 A.I.R. Mad. 55 but that decision does not touch the question before us. In that case a Magistrate of the Second Class commenced the trial of a criminal case and framed a charge against the accused. Thereafter he was invested with the powers of a Magistrate of the First Class and after he was so invested, he continued the trial, examined witnesses for the defence and convicted the accused. The Madras High Court held that the appeal against the conviction lay to the Court of Session as the trial of the case was held by a Magistrate of the First Class. It would be noticed that in that case part of the trial was undoubtedly held by a Magistrate of the First Class and the question now before us did not arisen for decision in that case. There are however a number of judicial decisions in which similar words occurring in Section 407 have formed the subject of interpretation, but most of those cases are also of no help for the decision of the question raised before us. Section 407(1) provides that:
Any person convicted on a trial held by any Magistrate of the Second or Third Class...may appeal to the District Magistrate.
4. In Sheobhajan Singh v. Emperor (1925) 12 A.I.R. Pat. 472 it was held that : It may be admitted that the wording of Section 407, Criminal P.C., admits of the view that it is not the conviction by a Second Class Magistrate but the holding of a trial by such Magistrate that determines the forum of the appeal.
5. But it also appears from a perusal of the judgment in that case that the Magistrate who tried that case was in the beginning of the trial invested only with the powers of a Magistrate of the Second Class, but before the arguments were heard he was given the powers of a Magistrate of the First Class. To the same effect are the decisions in Emperor v. Maganlal Jhaverchand (1927) 14 A.I.R. Bom. 366 and Durga Das v. Emperor (1927) 14 A.I.R. Lah. 138.
6. In none of these cases did the question whether the trial of a case extends to the date of the delivery of judgment arise for; decision, as in these cases either part of the evidence was recorded or the argument was heard by the Magistrate concerned after he had been given first class' powers. The precise question that we are called upon to decide arose for consideration in Baramaddi v. Magorali : AIR1932Cal460 . It was held in that case that where a Magistrate holding second class powers takes evidence and hears the arguments but is vested with first class powers before the date of delivering his judgment of conviction, an appeal will lie to the District Magistrate under Section 407. But a diametrically opposite view was taken by the Bind Judicial Commissioner's Court in Jalal v. Emperor (1937) 24 A.I.R. Sind. 22. It was held in that case that:
Sections 408 and 410 are to be read subject to the provisions of Section 404. Section 404 contemplates that the trial and conviction shall be by the same Judge. The Court to which an appeal lies from the judgment of a Judge is determined by the status of the Judge on the day on which he pronounces judgment.
7. The facts of the Sind case Jalal v. Emperor (1937) 24 A.I.R. Sind. 22 are on all fours with the facts of the case before us. In the Sind case the trial was held and the arguments were heard by an Assistant Sessions Judge but he was made an Additional Sessions Judge before he pronounced1 the judgment, and it was held that the appeal against his order of conviction lay to the High Court and not to the Court of Session. But we are, with alt respect for the reasons that we shall presently state, unable to agree with this decision. The learned Counsel for the appellants referred to the definition of the word 'trial' in Stroud's Judicial Dictionary, Edn. 2, p. 2097. The word 'trial' is there defined as meaning 'the conclusion, by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal.' The learned Counsel has further invited our attention to the definition of the word 'trial' in the Code of Criminal Procedure of 1872 (Act 10 of 1872). The word 'trial' is in that. Code defined as meaning 'the proceedings, taken in Court after a charge has been drawn up and includes the punishment of the offender.' It is on these definitions of the word trial' that the learned Counsel for the appellants has founded his argument that the trial includes the judgment in the case. We are however clearly of the opinion that the word 'trial' in the Code of Criminal Procedure of 1898 as amended by Act No. 18 of 1923, has been used in a restricted sense and not in the larger sense contended for by the learned Counsel for the appellants. It may be that in ordinary parlance and in certain statutes the word 'trial' is a word of wide import, but the question that we have to consider is, what is the correct interpretation to be put on that word having regard to the provisions of the Code of Criminal Procedure of 1898.
8. In the Criminal Procedure Code of 1882 (Act 10 of 1882) as well as in the Code of 1898 the definition of the word 'trial' contained in the Code of 1872 was dropped and the word 'trial' was not defined by the Legislature in the Codes of 1882 and 1898. A reference to the provisions of the Code of 1898 puts it beyond doubt that the word 'trial' in that Code does not include judgment. Section 366 of the Code provides that:
(1) the judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced, of the substance of such judgment shall be explained : (a) in open Court either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders....
9. This provision in the Code of 1898 shows that the delivery of judgment is after the 'termination' of the trial. Judgment cannot therefore be included within the word 'trial' and the trial must be deemed to have come to an end before the judgment is delivered. The corresponding section dealing with 'judgment' in the Code of 1882 was Section 366 of that Code which provided that:
The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court either immediately or at some subsequent time of which due notice shall be given to the parties or their pleaders....
10. The comparison of Section 366 in the two Codes unmistakably shows that the Legislature, in the Code of 1898, deliberately introduced the words 'after the termination of the trial' - words which are not to be found in Section 366 of the Code of 1882. The introduction of these words in the Code of 1898 must have been with the deliberate purpose of putting it beyond doubt that judgment was not to be regarded as part of the trial. The same conclusion deducible by Sub-section (4) of Section 497 of the Code. Sub-section (4) was added in Section 497 of the Code of 1898 by the Amending Act (Act No. 18 of 1923). That sub-section reads as follows:
If at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any offence, it shall release the accused....
11. This provision clearly shows that the 'conclusion of the trial' of a case takes place before the judgment is delivered, and the judgment therefore is no part of the trial. A similar inference is deducible by the provisions of Sections 268 and 309 of the Code of 1898. Section 268 provides that:
All trials before a Court of Session shall be either by jury, or with the aid of assessors.
12. Section 309 lays down that:
(1) when, in a case tried with the aid of assessors, the case for the defence and the prosecutor's reply (if any) are concluded, the Court may sum up the evidence for the prosecution and defence,, and shall then require each of the assessors to state his opinion orally, and shall record such opinion.
12. It is then laid down by Sub-section (2) of Section 309 that:
The Judge shall then give judgment, but in doing so, shall not be bound to conform to the opinions of the assessors.
13. It is manifest from the provisions of Section 268 that the Judge together with the assessors constitute the Court, and the presence of the assessors at every stage of the trial is therefore necessary. The assessors however play no part in, nor have any control over the framing of the judgment by the Judge, nor is there any provision in the Code that requires the presence of the assessors when the judgment is composed or delivered. This again points to the conclusion that the Legislature did not intend to lay down that the trial of a case was to extend to the date, of the delivery of judgment. The question whether pronouncing of judgment is a part of trial was considered and decided by the Madras High Court in Murugappa Thevan v. Emperor (1936) 23 A.I.R. Mad. 163 In that case the Madras High Court had to construe the words 'inquiry or trial' used in Section 526(a) of the Code of 1898 and it held that:
The pronouncing of judgment is not a part of the inquiry or trial and, therefore, where a Magistrate is transferred after he has completed the trial but before pronouncing judgment, the case cannot be transferred to him for the purpose of pronouncing judgment, however convenient this course may be in practice.
14. The learned Counsel for the appellants relied on the decision of this Court in Queen-Empress v. McCarthy (1887) 9 All. 420 in which it was held that:
No trial can be, legally speaking, concluded until judgment and sentence are passed, and the trial of a cane referred by a Sessions Judge to the High Court under Section 807, 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.
15. This decision however can furnish no guide for the interpretation of the word 'trial' as used in the Code of 1898 for the simple reason that this decision was under the Code of 1882 in which there was no provision similar to the provision in the Code of 1898 that the delivery of judgment is to be 'after the termination of the trial.' A consideration of the provisions of the Code of 1898 has led us to the conclusion that the Code draws a distinction between the trial of a case and the decision of a case. The trial of a case includes those stages of the proceedings of the case in which the parties thereto are entitled to take part. The trial therefore extends to the recording of evidence and to the hearing of arguments. But so far as the act of the preparation and delivery of judgment is concerned, it is an act of the Judge and the Judge alone and the parties can take no part in the same. Judgment is therefore no part of the trial and is outside the; scope of a trial as contemplated by the ; Code of 1898. In the Sind case Jalal v. Magorali : AIR1932Cal460 referred to above the only reason assigned for the view that the forum of appeal is deter, mined by the status of the Judge on the day on which he pronounced his judgment was that Section 408 of the Code was subject to the provisions of Section 404. Section 404 provides that:
No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.
16. The learned Judges observed that as appeal lay against the 'judgment' and not against the 'trial', the status of the Judge on the date of the delivery of judgment must determine the forum of the appeal. We may however point out, with all, respect, that all that Section 404 indicates is that the appeals are to be against judgments and orders but that section has nothing to do with the forum of the appeal which is provided for by Sections 406, 407, 408, 410 and 411 of the Code, and the determination of the forum of appeal must depend on the interpretation of the words used in those section.
17. For the reasons given above we hold that the trial of the case now under appeal was held by Mr. Crofts as an Assistant Sessions Judge and, though he pronounced the judgment as an Additional Sessions Judge, the appeal against his judgment lies to the Court of Session and not to this Court. In this view of the matter the proper order to pass is to direct the memorandum of appeals to be returned to the appellants for presentation in the Court of the Sessions Judge of Saharanpur along with an application for extension of time under Section 5, Lim. Act. But in order to avoid this trouble to the appellants we direct that the memorandum of appeals along with the typed record prepared in this Court be sent to the learned Sessions Judge of Saharanpur with the direction that he should register the appeals and proceed to hear and decide the same in accordance with law. The appellants' counsel have stated that their clients will file an application for extension of time under Section 5, Lim. Act, in the Court of the Sessions Judge and, having regard to the fact that the question now decided by us was not free from difficulty, we have every reason to believe that the learned Sessions Judge will extend the time and will treat the appeals as having been filed within time.