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In Re: Velivalli Brahmaiah and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in129Ind.Cas.633; (1930)59MLJ674
AppellantIn Re: Velivalli Brahmaiah and ors.
Cases ReferredLakshmanacharyulu v. Venkataramanujacharyulu
Excerpt:
.....is no direct authority in respect of the word 'signed' occurring in section 265, clause (2) of the criminal procedure code the meaning attached to that word in the aforesaid decisions can well-nigh be applied to it. the repeal of this illustration in the amended code clearly indicates that the legislature no longer views the defect pointed out in the aforesaid illustration as a mere irregularity not affecting the validity of the proceeding. i may also point out that though the offences complained of in the present case fell under sections 504 and 352 of the indian penal code (as shown by the register), the conviction was under section 323. there is absolutely nothing in the judgment to show how the accused could be convicted for hurt under section 323, while the finding seems to be that..........the proceedings.' there is no definition of the word 'sign'' in the criminal procedure code. the word 'signing' had been interpreted in some judicial decisions and that meaning can be safely adopted for purposes of the present case. in the two decisions of the calcutta high court, namely, nirmal chunder bandopadhya v. saratmoni debyd i.l.r. (1898) c. 911 and mahabarsha, bankapore v. the secretary of state for india (1915) 20 c.w.n. 685 the word 'signing' has been taken to mean the writing of the name of the person who is the signatory, so that it may convey a distinct idea to others that the writing indicates a particular individual whose signature it purports to be. this question was considered in the first case in respect of a will and in the other case as regards a risk note to be.....
Judgment:
ORDER

Sundaram Chetty, J.

1. This is a petition by the accused 1 to 3 against the conviction and sentence of fine passed by the First Class Bench at Guntur. The charge against these accused was under Sections 504 and 352 of the Indian Penal Code. Apart from the merits of the case, one objection that is taken against the legality of the conviction is, in my opinion, sufficient to set it aside. It is clear from the register of summary trials maintained by the aforesaid Bench, that the judgment has in fact been signed only by two of the three Magistrates who heard and decided the case, the other having only initialled it. The mandatory provision in Section 265 of the Criminal Procedure Code is to the effect, that 'a judgment shall be signed by each member of the Bench present taking part in the proceedings.' There is no definition of the word 'sign'' in the Criminal Procedure Code. The word 'signing' had been interpreted in some judicial decisions and that meaning can be safely adopted for purposes of the present case. In the two decisions of the Calcutta High Court, namely, Nirmal Chunder Bandopadhya v. Saratmoni Debyd I.L.R. (1898) C. 911 and Mahabarsha, Bankapore v. The Secretary of State for India (1915) 20 C.W.N. 685 the word 'signing' has been taken to mean the writing of the name of the person who is the signatory, so that it may convey a distinct idea to others that the writing indicates a particular individual whose signature it purports to be. This question was considered in the first case in respect of a will and in the other case as regards a risk note to be signed and delivered to the Railway Company. In another Calcutta case, namely, Abdul Gafur v. Queen-Empress I.L.R. (1896) C. 896 the same question arose in . connection with a warrant of arrest issued by a Criminal Court. That warrant was not signed by the Magistrate as required by Section 75 of the Criminal Procedure Code, but it bore only his initials. The legality of the warrant so issued was questioned and it was held that the warrant was not signed as required by law. In view of this defect and some other defect pointed out in' that judgment, it was held that the person obstructing the execution of such a warrant could not be convicted under Section 186 of the Indian Penal Code. In a decision of this Court reported in Lakshmanacharyulu v. Venkataramanujacharyulu : AIR1926Mad827 it was held that for purposes of a valid acknowledgment under Section 19 of the Limitation Act, initials are not equivalent to signature. Though there is no direct authority in respect of the word 'signed' occurring in Section 265, Clause (2) of the Criminal Procedure Code the meaning attached to that word in the aforesaid decisions can well-nigh be applied to it. A judgment of a Bench of Magistrates has to be signed as required by law and the requirements of public policy necessitate the writing of the full name of the Magistrate that signs the judgment and the mere putting in of the initials is not, in my opinion, a sufficient compliance with the mandatory provisions of Section 265 of the Code.

2. In this connection, it must be considered whether the initialling by one of the Magistrates in the judgment in question instead of signing, is only an irregularity which can be cured under Section 537 of the Criminal Procedure Code. In the old Code, an illustration was added to Section 537 as follows:

The Magistrate being required by law to sign a document signs it by initials only. This is purely an irregularity and does not affect the validity of the proceedings.

3. But in the amended Code, this illustration is omitted. The repeal of this illustration in the amended Code clearly indicates that the legislature no longer views the defect pointed out in the aforesaid illustration as a mere irregularity not affecting the validity of the proceeding. The inference from the omission of this illustration is that the defect affects the validity of the proceeding and vitiates the conviction and sentence.

4. In the case of trials by a Bench of Magistrates the practice of some of the Magistrates not signing the judgments or putting in merely their initials instead of the full signature is to be deprecated. There seems to be also another practice, namely, that when copies of such judgments are given, the signature of the presiding Magistrate alone is copied, omitting the signatures of the other Magistrates (as was done in this case). Such a copy is obviously an incorrect one and it is inconceivable why the copy should be defective in this important particular. It is hoped that in future the Benches of Magistrates would strictly follow the mandatory provisions of the Code in the matter of signing judgments.

5. For these reasons stated by me, the conviction and sentence are vitiated by non-compliance with the mandatory provisions of Section 265 of the Criminal Procedure Code. The conviction and sentence have, therefore, to be set aside.

6. But in the circumstances of this case, it seems to me that the ordering of a retrial is useless and not in furtherance of public interests. I may also point out that though the offences complained of in the present case fell under Sections 504 and 352 of the Indian Penal Code (as shown by the register), the conviction was under Section 323. There is absolutely nothing in the judgment to show how the accused could be convicted for hurt under Section 323, while the finding seems to be that their guilt was under Sections 504 and 352.

7. In the result, the revision petition is allowed and the conviction and sentence are set aside. The fine, if levied, will be refunded to the petitioners.


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