Govinda Menon, J.
1. The petitioners seek to revise the conviction and sentence passed by the First Class Bench of Magistrates, Vizianagaram, convicting them of an offence under Section 352, Indian Penal Code and sentencing them to pay a fine. The Bench consisted of four members, of whom Sri Hanumantha Rao Pantulu was the president. They were equally divided in opinion, two of them for convicting the petitioners and the other two for acquitting them. Presumably acting under Rule 131 of the Criminal Rules of Practice, the president gave a casting vote as stated at the end of his judgment, and convicted the petitioners. Two judgments have been written, one by the notional majority composed of the president with his casting vote along with one member and the other by the two individuals who constituted the minority. The question raised by Mr. Sarathi for the petitioners is whether this procedure is correct, that is whether the Criminal Procedure Code and the Rules of Practice contemplate the delivery of two judgments, a majority and a minority one, in a case like this. Section 264 of the Criminal Procedure Code lays down that in every case tried summarily by a Bench of Magistrates in which an appeal lies, such Bench shall, before passing sentence, record a judgment embodying the substance of the evidence and also the particulars mentioned in Section 263 and that such judgment shall be the only record in cases coming within the section. It is clear that the Code contemplates only one judgment and not more and it is made more specific by Rule 131 laying down that difference of opinion shall be settled by the votes of the majority of the Magistrates present, the chairman having the casting vote. The law does not contemplate that the internal differences of opinion between the Magistrates constituting the Bench should be exhibited in public. What is really essential is that the Magistrates should confer in private and it is only the majority view that should be given out as the judgment of the Bench. That this is the correct view and the Legislature did not intend to have the opinions of different Magistrates delivered is clear by analogy if we look at the other provisions of the Criminal Procedure Code itself dealing with judgments to be delivered by the High Court in Referred Trials, as well as in Appeals against convictions from SessionsCourts. According to Section 378, where a referred trial is heard before a Bench of Judges of the High Court and such Judges are equally divided in opinion, the case with their opinions thereon shall be laid before another Judge and such Judge after such hearing as he thinks fit shall deliver his opinion and the judgment or order shall follow such opinion. What is expressed by the dissident Judges is termed an opinion and not a judgment and the judgment of the Court is the final expression of opinion by the third Judge. Section 429 dealing with the powers of the High Court when hearing appeals against other convictions also lays down.
When the Judges composing the Court of Appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge....
It is therefore evident, as stated by me already, that the Legislature intended to lay down that what has been expressed by the Judges who have differed is only their opinion and not the judgment. When we compare and contrast Section 264 with the above sections, the use of the words ' such judgment ' in Section 264 and ' opinion ' in Sections 378 and 429 will make the situation quite plain. All that Rule 131 says is the method of arriving at the final conclusion. Rule 131 does not lay down the method of expression of the final opinion but only says how the conclusion can be arrived after discussion among the Magistrates.
2. We may usefully refer in this connection to Section 98 of the Civil Procedure Code and clause 36 of the Letters Patent of our High Court. Section 98 of the Civil Procedure Code enacts what the procedure ought to be when an appeal is heard by a Bench of two or more Judges. The proviso to sub-clause 2 lays down that where the Judges composing the Bench differ on a point of law they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges and such point shall be decided according to the opinion of the majority of the Judges who have heard the appeal including those who first heard it. This section cannot alter or affect the provisions of clause 36 of the Letters Patent, which is to the effect that if a Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other judges-and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.
3. There is no provision, for a reference to a third Magistrate, so far as the Bench is concerned and since the section does not empower them to give out their individual opinions in public, all that they could do is to confer among themselves and give out only the opinion of the majority as laid down in Rule 131.
4. There have been two judgments in this case, a majority and a minority one. Mr. Sarathi asks me to compare the two and give a decision in his favour accepting the view of the minority. Since the Magistrates have acted in delivering their judgments in derogation of the law as laid down in Section 264 of the Criminal Procedure Code and Rule 131 of the Rules of Practice, I think it advisable in the peculiar circumstances of this case that the judgments of both the majority and the minority be set aside and the case be remanded for retrial by the First Class Bench of Magistrates, Vizianagaram or such other Magistrate to whom the District Magistrate may transfer it.