1. Cr.R.C. Nos. 969 and 970 of 1927.--The point raised by Mr. Ethiraj in these two cases is that the judgment of the Bench was not signed by all the members of the Bench and that, therefore, it is no judgment at all. Under Section 265, Criminal Procedure Code, judgments have to be prepared by the Presiding Officer of the Court. Under Clause (2) the Government may authorise any Bench of Magistrates empowered to try offences summarily to prepare the aforesaid record or judgment by means of an officer appointed in this behalf by the Court to which such Bench is immediately subordinate, and the record or judgment so prepared shall be signed by each member of such Bench taking part in the proceedings. Clause (3) is as follows:
If no such authorisation be given, the record prepared by a member of the Bench and signed as aforesaid shall be the proper record.
2. The contention of Mr. Ethiraj is that in the absence of authorisation under Clause (2) by the Government, a record prepared by the presiding officer of the Bench should be signed as is provided for in Clause (2). Clause (3) does not apply to the case of the preparation of record or judgment by the presiding officer of the Court. If the record is prepared by a member of the Bench and not by the presiding officer, it shall have to be signed by each member of the Bench taking part in the proceedings. But where the presiding officer himself prepares the record or judgment it is not necessary that the other members of the Bench should sign the record or judgment. Section 367 of the Criminal Procedure Code requires the presiding officer of the Court to write the judgment and it shall be dated and signed by him in open Court at the time of pronouncing it. That being so, when the judgment of a Bench is prepared by the presiding officer it is sufficient if he alone signs it. It is not necessary that the other members should sign it. In this case the presiding officer of the Bench signed the judgment and this point does not help the petitioner.
3. The next point is that the judgment was delivered at about 8-30 at night after the other members of the Bench had left the Court. The Magistrate in his explanation says that the other members of the Bench gave their opinion or verdict and left the Court and he afterwards wrote the judgment and signed it. Section 366 requires that the judgment of a Criminal Court should be pronounced by the Court and, if required by the accused, it shall be explained to him. When the members composing the Bench leave the Bench, there is no Court at all. The mere fact that the presiding officer sits in the Court-room and writes his judgment will not make that a Court. When a judgment is delivered, the members of the Bench who took part in the trial and who concurred or differed from the judgment should be present. Mr. Lakshmanna who appears in another case strongly urges that it is only an irregularity and should not be held to vitiate the judgment. I am unable to accept this contention.
4. The judgment of a Criminal Court must be delivered in open Court when the Court is sitting. It is not at all proper that the judgment of a Bench which is practically the judgment of a number of Judges should be written and delivered by only one of them. No doubt if all the others had concurred in the judgment and told the presiding officer to deliver it that might be different. But they must be present to know what the judgment contains. There are cases in which reasons need not be given in a judgment. In such a case the matter may be different. But where a judgment contains reasons, other members of the Bench must either concur with the reasons or express their dissent from the reasons given by the presiding officer. In this case the preparation of the judgment after the other members of the Bench had left the Court cannot be said to be a proper judgment. In order to make the matter clear, I must observe that the mere delivery of a judgment may be left to the presiding officer by the other members of the Bench. But they must be aware of what the judgment contains and therefore they must approve of the whole of the judgment if a judgment is written, and if no judgment is written the requirements of Section 263 must be complied with. All the members of the Bench should be present when the record is prepared as required by Section 263. Section 264 applies to appealable cases, and in such cases all the members of the Bench must be present when a judgment is prepared. If the judgment is reserved, it must be read to them before it is delivered. I make these observations in order to prevent irregularities in the procedure of the Bench Magistrates. In these two cases, seeing that the judgment was prepared and delivered in the absence of other members of the Bench, I set aside the conviction and order a re-trial. The fines, if paid, will be refunded.
5. Cr.R.C. No. 971 of 1927. - In this case the judgment was prepared by the presiding officer in the absence of the other members of the Bench. The remarks that I have made with regard to the judgment in the other two cases apply to this. But this is a case of acquittal and seeing that this is a petty case, though the judgment is an illegal one, it is unnecessary to order a re-trial.
6. I therefore dismiss this petition.