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Hari Sahu and anr. Vs. Smt. Makhi Dei - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in29(1963)CLT347; 1965CriLJ409
AppellantHari Sahu and anr.
RespondentSmt. Makhi Dei
Cases ReferredCourt In Surendra Singh v. State of Uttar Pradesh
Excerpt:
.....not suffice to vitiate the entire proceeding. following the principles laid down in the aforesaid supreme court case i must hold that the judgment was validly delivered in open court and hence the mere failure on the part of the magistrate to write out in his own hand and his action in getting it typewritten at his dictation, will at best be mere irregularity curable under section 537, cri......where a case is tried summarily by a magistrate, the judgment must be written by him in his own hand. the learned judge of the mysore high court appears to have gone to the extent of saying that if the judgment is not written by the magistrate in his own hand in such cases the entire trial will be vitiated. but this view was not accepted by the allahabad high court in a later decision reported in abdul aziz v. state : air1956all637 .4. i may in this connection refer to the judgment of the supreme court in surendra singh v. state of uttar pradesh : 1954crilj475 which will be of some assistance in defocusing this question of law. assuming that the language of section 265 (1) cri.p.c. requires that the presiding officer must write judgments in sumptuary trials in his own hand the.....
Judgment:
ORDER

R.L. Narasimhan, C.J.

1. This is a revision against the judgment of the Sub-divisional Magistrate, Bhadrak, convicting the two petitioners under Section 323, I.P.C. and Section 24 of the. Cattle Trespass Act and sentencing them to pay various amounts of fine. The trial was held summarily and the two following important questions of law were urged by Mr. Dhal in support of this revision petition:

(i) The judgment was dictated by the learned Sub-Divisional Magistrate and typed by his stenographer and then signed by him. This would amount to a contravention of the mandatory provisions of Section 265(1), Cri.P.C. Hence according to Mr. Dhal the judgment is not a judgment in accordance with law.

(ii) The substance of the evidence has not been recorded in the manner required by Section 264, Cri.P.C. In any opinion neither of these contentions is sustainable.

2. So far as the recording of evidence is concerned the Magistrate has recorded in full almost verbatim all the answers given by the prosecution witnesses in cross-examination, though his recording of the examination-in-chief Is somewhat brief and contains only the substance of the depositions of the witnesses, But no prejudice has been shown to have been caused by the adoption of this procedure and so long as the record of the Cross-examination is full there can be no question of any prejudice. In Mir Ghulam Mussain v. SK. Hapan Criminal Revn. No. 386 or 1960 : (1965) (1) Cri LJ 408 (Orissa) disposed of yesterday I have discussed this point and have also distinguished the Bombay case, reported in Krishna Nayar Ram Nayar v. State AIR 1960 Bom 107. In my opinion, therefore, there has been substantial compliance with the provisions of Section 264, Cri.P. Code.

3. As regards the first contention Mr. Dhal relied very much on the decision of a Single Judge of the Mysore High Court reported in Nagappa setty v. Holalkere Municipal Council AIR 1055 Mys 109 where the difference in language between Section 265(1) ,and Section. 357 (i) Cri.P.C. regarding that mode of writing a judgment has been noticed and it was observed that where a case is tried summarily by a Magistrate, the judgment must be written by him in his own hand. The learned Judge of the Mysore High Court appears to have gone to the extent of saying that if the judgment is not written by the Magistrate in his own hand in such cases the entire trial will be vitiated. But this view was not accepted by the Allahabad High Court in a later decision reported in Abdul Aziz v. State : AIR1956All637 .

4. I may in this connection refer to the judgment of the supreme Court In Surendra Singh v. State of Uttar Pradesh : 1954CriLJ475 which will be of some assistance in defocusing this question of law. Assuming that the language of Section 265 (1) Cri.P.C. requires that the presiding Officer must write judgments in sumptuary trials in his own hand the question ultimately will be whether it is an irregularity curable under Section 537, Cri.P.C. or an illegality which vitiates the trial itself. Clause (a) of Section 537 Cri.P.C. expressly says that any error omission or irregularity in a judgment will not by itself be a ground for reversing the sentence unless prejudice is proved to have been caused. Their Lordships in the aforesaid case held that so long as the judgment is validly delivered even such an omission as failure on the part of the Presiding Officer to sign the judgment and authenticate it would be a mere irregularity, and it will not suffice to vitiate the entire proceeding. Here the Magistrate got the judgment typewritten presumably by home number of his staff and he has also given an endorsement to the effect that the judgment was pronounced in open court on the 4th April 1962. He has also given a further certificate to the effect that it was dictated and corrected by him. Mr. Dhal did1 not challenge the correctness of the aforesaid endorsement or certificate nor could he show that any prejudice was caused to the petitioner by the omission of the Magistrate to write the judgment in his own hand. Following the principles laid down in the aforesaid Supreme Court case I must hold that the judgment was validly delivered in open court and hence the mere failure on the part of the Magistrate to write out in his own hand and his action in getting it typewritten at his dictation, will at best be mere Irregularity curable under Section 537, Cri.P.C.

5. I would accordingly prefer to follow the later decision of the Allanabad High Court In : AIR1956All637 to the earlier decision of a single judge, of the Mysore High Court in (S) AIR 1955 Mys. 109 relied on by Mr. Dhal.

6. There is no other point of law involved in this case. The conviction and sentence are maintained and the revision petition is dismissed.


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