1. This is an appeal by special leave under Section 417(3) Cr. P.C., by the complainant in a complaint case from the judgment of acquittal of the First Class Magistrate Bhopal (Shri B. L. Agarwal) dated 19-2-1958 but delivered on the next day by his successor. The memorandum shows that the complainant would very much like to raise the merits of the acquittal but the special leave order by this Court shows that it was admitted only for consideration of 'the question of legality of the judgment which was written by the trying magistrate but was pronounced by his successor in office'. I would, therefore, examine this question only. If this is held to be illegal, the case should go back for the pronouncement of the judgment by the trying magistrate himself, who should be posted back to that station for this purpose alone. On the other hand, if it is not illegal, the matter should rest.
2. While the Civil P.C., expressly provided for many such situations, the Cr. P.C., is more general and silent in this regard. The reason is that the two Codes are on somewhat different schemes. After 1,908, the C.P.C. is broadly divided into the Code proper, which deals with general principles, and the orders in the Schedule which provide for the more mechanical or ministerial matters; the provisions that come in the rules are such as can be derived from this or that section. But for the sake of clarity they are set out separately. But the Criminal P.C. has no such division. So, in applying it, the Courts should separate the judicial provisions, which are the essence of procedure, and the mechanical or ministerial matters which are the same, whoever is the Court which does them.
3. The law has provided that the judgment should be written by the Magistrate who has heard the case. It might happen that a magistrate is transferred or for some other reasons is unable to complete the hearing; in that event, the successor takes over the case. He might either, complete the hearing beginning at the stage at which his predecessor has left it, or acting suo motu or on the prayer of the accused, hear it de novo. This is well known and involves no uncertainty or confusion. Since magistrates are constantly on the move, it does happen that one who has completed the hearing of a case, has to leave before he pronounces judgment.
If he does not write the judgment at all, there is nothing to be done about it and the case has to be heard again, and then disposed of. His successor cannot in a criminal case, write a judgment on the materials wholly and solely recorded by his predecessor. But often it happens that the outgoing magistrate has got just time to write the judgment but is not able to stay on to pronounce it. It may be, one or two holidays intervene or he has to leave so late in the day that by then the Court time is over. These are unusual happenings and certainly magistrates should do their best to avoid them. But when they do occur, there is nothing left except for the magistrate, if he is unable to stay on, at least to write the judgment and leave it with his successor, who in his turn, would pronounce it in Court. In such a case, the judicial part of the work, namely, the weighing of the pros and cons of the case and arriving at a decision as to the guilt or otherwise of the accused, has been done by the very magistrate who has heard the case. But the mechanical part of the work, namely, of taking the paper and reading out in the Court room before the accused has been done by the successor.
I do not see how the merits of the judicial decision can at all be affected by the mechanical work of reading out. The notion that there is something possibly illegal in a successor doing certain things in connection with a case heard and decided by a magistrate, comes out of the failure to distinguish between judicial acts which certainly cannot be delegated and must be done by the very magistrate who hears the case, and ministerial or mechanical acts which could be done by him or his successor, though, naturally, it would be more convenient if he did it himself.
4. There is therefore, no point in setting aside the pronouncement of the judgment by the successor and sending the case back and directing that the magistrate who heard the case should go back on a retransfer to the old station, then deliver the judgment and return.
5. In the result, I find no substance in thisappeal and I would accordingly dismiss it.