1. This case (Cal. Case No. 716 of 1915) on the file of the 2nd Class Magistrate of Dindigul was tried by Mr. D.K. Venkateswara Aiyar who heard all the evidence and adjourned it to 30-11-1915 for judgment. He also wrote and signed a judgment, adding the date (30-11-1915), but did not pronounce it as, when the case was called on 30-11-1915, one of the three accused was absent. The case was therefore adjourned to secure the attendance of this man. On 8-12-1915 all the accused appeared, but by that time Mr. Venkateswara Aiyar had been succeeded by Mr. N. Subramania Aiyar. The accused then demanded a de novo enquiry under S.350 of the Criminal Procedure Code and Mr. Subramania Aiyar apparently feeling doubts as to whether he would in such circumstances be justified in pronouncing his predecessor's judgment acceded to their demand.
2. The District Magistrate refers the case under Section 438 of the Criminal Procedure Code on the ground that Mr. Subramania Aiyar was bound to pronounce his predecessor's judgment and recommends that he should be ordered to do so, and that his order for a de novo trial should be set aside.
3. It seems to me that the District Magistrate has taken a wrong view of the law, and that the Sub-Magistrate was acting legally in deciding to hold a de novo trial. It was held by a bench of this Court in Sankara Pillai in re : (1908)18MLJ197 construing Section 367 of the Criminal Procedure Code that a Magistrate did not act illegally in dating signing and pronouncing in open Court a judgment which had been written by his predecessor who had heard all the evidence. But there is nothing to indicate that the learned judges held it to be obligatory on him to do so; the question of how far his discretion would be fettered by the provisions of Section 350 of the Criminal Procedure Code was not considered at all.
4. Sections. 366 and 367 of the Criminal Procedure Code read together require that a judgment shall be (1) written (2) signed (3) dated and (4) pronounced in open Court; the latter three must take place on the same occasion. Till all these formalities have been gone through the judgment is not delivered, and there is nothing to prevent the Officer who wrote it from tearing it up and writing another In this sense, it is incomplete.
5. The fact that the first Magistrate went so far as to sign and date the judgment he had written is immaterial, seeing that he did not pronounce it. Section 367 requires the dating and signing to be in open court at the time of pronouncement. The second Magistrate was therefore in exactly the same position on 8-12-1915, as if he held in his hands a judgment which bad been simply written and left behind by his predecessor In the absence of any demand for a de novo trial it would have been in his discretion to date, sign and pronounce this judgment. Whether it would have been legal for him to do so in the face of a demand for a de novo trial seems to me very doubtful; but that question need not be decided. That he was not bound to deliver his predecessor's judgment I am quite clear whether the accused demanded a de novo trial or not.
6. Whatever action he takes must be under Section 35(1) which leaves it to his discretion. There is no specific provision in the Criminal Procedure Code corresponding to Order 20, Rule 2 of the Code of Civil Procedure under which it might be argued that the second judge was merely the mouth-piece of the first. A Magistrate who pronounces a judgment of his predecessor must in my opinion be taken to adopt it as his own. -He cannot be compelled to do this.
7. In my opinion there is no ground for interference and the records should be returned to the District Magistrate.
8. I agree.