1. This is an application for the revision of an order of the District Magistrate of Azamgarh, directing a Second Class Magistrate to write and pronounce judgment in a case which had been tried by him. The circumstances are that a case under Section 325, Indian Penal Code, had been instituted in the court of the Magistrate, who passed an order on December 21, 1932, on the order sheet to the effect that final orders, would be passed on December 23. On that date the Magistrate merely wrote an informal order on the order sheet acquitting the accused without delivering a judgment at all. An application for revision was filed in the court of the District Magistrate, Who recorded an order that he would look into the matter on inspecting the tahsil, and his order of January 13 which is the subject of the present application was apparently written during the inspection of the tahsil, but must be regarded as an order passed on the present application to him for revision.
2. It is argued in support of the present application that the proceedings of the Magistrate were irregular in that he acquitted the accused in the case without writing a judgment. He did, however, subsequently write a judgment dated January 19, in accordance with the order of the District Magistrate in which he reviewed the facts of the case and discussed the evidence. The proceedings are, therefore, complete. Mr. S. N. Mukerji has quoted two decisions on which he bases his argument that the order of the District Magistrate should be set aside and that a retrial should be ordered. Such a course would entail not only the setting aside of the order of the District Magistrate but also the judgment of the Tahsildar Magistrate recorded and pronounced on January 15, and the order of acquittal, which may or may not be regarded as an order passed under Section 258 (1), Criminal Procedure Code, which was recorded on December 23, 1932. In the case of Queen Empress v. Hargobind Singh (1) 14 A. 242 : A. W. N. 1891, 83., it was held by a Full Bench of this Court that:
A sentence which has been passed or a direction that an accused be set at liberty which has been given at a Sessions trial before the judgment required by Section 367 of the Code of Criminal Procedure, 1882, has been written is illegal.
3. In that case the Sessions Judge without writing a proper judgment had recorded an order directing the four persons accused to be hanged under Section 3(sic)2, Indian Penal Code. In setting aside that order and directing a retrial the Full Bench remarked:
Inasmuch as the sentence in the case of a conviction and the direction to set the accused at liberty in the case of an acquittal, can only follow on the decision and cannot precede it and inasmuch as the decision must be contained in the written judgment, and there only, it necessarily follows that when, in cases like the present to which Section 367 applies, there is no written judgment when the sentence is passed, the sentence is illegal.
The requirements of Sections 366 and 367 are to mere matters of form. The provisions of those sections are based upon good and substantial grounds of public policy, and whether they are or not, Sessions Judges must obey them and not be a law to themselves. Any Judge at the conclusion of the evidence in a case, some of which may be not quite distinct in his mind owing to the length of the trial, might pass sentence on a prisoner and find it impossible honestly afterwards to put on paper good reasons for having convicted him, or on the other hand, might direct that the accused be set at liberty and find it impossible afterwards honestly to put on paper good reasons for the acquittal
4. There is no reason to suppose that these remarks are not to be applied with equal force in the case of the proceedings in the court of Magistrate, at any rate in such cases as require the writing and pronouncement of a regular judgment in accordance with the provisions of Sections 366 and 367, Criminal Procedure Code, Warrant cases for which the procedure is prescribed in Chap. XXI, of the Code are such cases. In Section 258 (1) it is laid down that
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.
5. But the mode in which the order of acquittal is to be recorded is set forth in Chap. XXVI.
6. Undoubtedly, therefore, the procedure of the Magistrate in directing the accused to be acquitted without writing a judgment was irregular. Mr. Mukerji has pointed out that the Magistrate apparently has no intention of writing a judgment at all until he was directed to do so by the District Magistrate, but this does not affect the merits of the case. The question I have to consider is whether the irregularity is such as can be cured under the provisions of Section 537, Criminal Procedure Code. In the case decided by the Full Bench of the Allahabad High Court to which I have referred above, it is obvious that the irregularity could not be cured and the same view was taken in the case of Jhari Lal v. Emperor 122 Ind. Cas. 531 : A I R. 1930 pat 148; 8 Pat 904 : 31 Cr. L. J. 416 : Ind. Rul. (1930) Pat. 211 : 11 P. L. T. 195. These were both cases in which the order which was held to be irregular was an order of conviction. There have been other cases: Tilak Chandra Sarkar v. Baisagomoff 23 C. 502., (also an order of conviction) in which it was held the irregularity could be cured. A similar view was taken in the case of Sankaralinga Mudaliar v. Narayana Mudaliar 68 Ind. Cas. 615 : A I. R. 1922 Mad. 502 : 16 L. W. 413 : 43 M. L. J. 362 : (1922) M. W. N. 579 : 31 M. L. T. 342 : 23 Cr. L. J. 583 : 45 M. 913., a Sessions case in which the Judge at the end of the trial informed the accused that they were acquitted in order to save them from having the anxiety of the charge handing over them for longer than was absolutely necessary, and gave his full reasons for the acquittal at another time. I am not prepared to say that in every case in which there has been an irregular order of acquittal such as the present one the irregularity could be cured under Section 537 of the Code. It would depend on whether the court could hold that there had or had not been a failure of justice owing to the irregularity. In the present case judgment was pronounced about one month after the end of the hearing and if judgment had been merely reserved for that period there would have been no irregularity at all. The irregularity consisted of what appears to have been an informal order of acquittal before the judgment was written and pronounced, and as the Magistrate when he did come to write and pronounce judgment was of the same opinion as he had been when he directed the accused to be acquitted, and as he has given his reasons for that opinion based on the evidence in the case I cannot hold that there has been any miscarriage of justice. The present application for revision is, therefore, dismissed. A copy of this order must, however, be sent to the Magistrate concerned through the District Magistrate for his information and guidance.