1. In this case the four petitioners have been convicted for offences under Sections 325 and 323 and 323 read with Section 34 I.P.C. The first accused is sentenced to four months' R.I. and a fine 'of Rs. 100 for an offence under Section 325 I.P.C. and the others are sentenced to pay a fine of Rs. 100 each for offences under Section 323 and 323 read with Section 34 I.P.C.
2. The evidence on which these petitioners have been convicted has been accepted by both the courts below and after going through it, I see no reason to reject it. But the learned advocate has raised questions of law which arise on the following facts:
3. The defence closed its case on 2nd December 1947 and C.W. 1 was examined on 16th December 1947 and the Magistrate had posted it for arguments (at the instance of the defence counsel) to 21st December 1947. On 21st December 1947 the pleader instead of advancing arguments, presented a petition under Section 526(8) Cri.P.C. praying for an adjournment as he intended to move the High Court for transfer. The petition was dismissed. The Magistrate was then under orders of transfer. He therefore posted the case for judgment to 22nd December 1947 and as the accused were absent on that day, he handed over charge to his successor with the judgment he had already written and signed. The successor adjourned the case and on the adjourned date the accused presented a petition under Section 350 Cri.P.C. for a de novo trial and the same was rejected on 14th December 1948 and the successor delivered the judgment on the same day.
4. The first contention of the learned advocate is that the conviction is illegal, because the judgment that was delivered was written by the predecessor in office. He contends_ that it is a fundamental rule of Criminal jurisprudence that the Judge who hears the evidence must pronounce the judgment and he relies on 'Alli Khan In re', I.L.R. (1947) Mad. 365 in support of his contention.
'Alli Khan in re', I.L.R. (1947) Mad. 365 is a case where the Sessions Judge after his transfer and after the successor had taken charge remained in the station, dictated the judgment and gave it to the successor to be delivered and the successor delivered the same on behalf of his predecessor. Horwill J. who delivered the leading judgment held that the moment the predecessor handed over charge to the successor, the predecessor had become functus officio and he had no jurisdiction to pronounce H and the defect cannot be coured by Section 537 Crl.P.C. After dealing with the history of the law on the subject he stated 'It will be seen from the above analysis that the original law was that the Judge who writes and pronounces a judgment must be the Judge who hears all the evidence. This must still be deemed to be the law, except in so far as it has been modified by the Legislature from time to time.'
He refers to Order XVIII, Rule 15 and Order XX Rule 2 C.P.C. as instances of modification in-troduced in the Civil Procedure Code, and similarly he refers to Section 350 Crl.P.C. as a modification introduced in the Criminal Procedure Code, Under Section 350, a successor is permitted to act on the evidence recorded by the predecessor or partly recorded by him. But there is no corresponding provision relating to sessions trials. In 'Sankara Pillai in re', 18 Mad. L.J. 197 it has been held that a successor can pronounce the judgment written and signed by his predecessor. It is a decision of a Bench of this court and it is on all fours with this case.
'In re Sankara Pillai', 18 Mad. L.J. 197 is referred to 'in re Savarimuthu Pillai', 40 Mad. 108 another decision of a Bench of this court. The learned Judge who delivered the judgment 'in re Savarimuthu Pillai', 40 Mad. 108 said 'A Magistrate who pronounces the judgment of his predecessor in office must in my opinion be taken to adopt it as his own.' Both the above decisions are referred to in 'Alli Khan in re', ILR (1947) Mad. 365 where it is stated
'If the decision in 'Sankara Pillai in re', 18 Mad. L.J. 197 purports to be an interpretation of Section 367 Cri.P.C. without reference to the provisions of Section 350 Cri.P.C. which deals with cases before a Magistrate, then we would find it difficult, with respect, to accept that interpretation as correct. But it is unnecessary for the purpose of disposing of this appeal to expressly dissent from it, because it can be distinguished on two grounds: the first is that already indicated, i.e., it dealt with a case where there was a change of magistrates, in which different considerations arose because of the provisions of Section 350 Crl.P.C. and the second is that in that case the earlier magistrate continued in office when he wrote the judgment.' Thus the decision in 'Sankara Pillai in re', 18. Mad. L.J. 197 and 'Re Savarimuthu Pillai', 40 Mad 108 were not dissented from in 'Alli Khan in re', ILR (1947) Mad. 365. The present case is one which is governed by the provisions cf Section 350 Crl.P.C. and it is not disputed that the, judgment was written by the predecessor while he was in office. . Such a judgment can therefore be delivered by the successor. In 'Chinna Somayya in re : AIR1933Mad251 , Burn J. held that where a magistrate who signs the judgment but does not pronounce it, is transferred and the judgment is pronounced by his successor there is no irregularity much less an illegality. There is therefore nothing illegal or irregular in the judgment delivered in this case.
5. The second contention is that the first Magistrate should have adjourned the case when the pleader presented an application under Section 526(8) Crl.P.C. and the dismissal of the petition and the subsequent proceedings are illegal and therefore the judgment written by the predecessor is illegal and hence the conviction and sentence are illegal.
6. As already stated the defence case was closed on 2nd December 1947 and after examination of C.W. 1 on 16th December 1947 the case was posted for arguments on 21st December 1947 when the application under Section 526(8) was presented. The question for consideration is whether the mandatory provisions of Section 526(8) apply to applications at that stage of the case.
7. Section 526(8) is as follows :
'If in any inquiry under Chapter VIII or Chapter XVIII or in any trial, any partyinterested intimates to the Court at any stage before the defence closes its case that he intends to make an application under this section, the court shall, upon his executing, if so required, a bond without sureties, of an amount not exceeding two hundred rupees, that he will make such application within a reasonable time to be fixed by the court, adjourn the case for such a period as will afford sufficient time for the application to be made and an order to be obtained thereon.'
8. Before this clause was amended in 1932 the clause 8 was as follows : 'If, in the course of any inquiry or trial or before the commencement of the hearing of any appeal, the Public Prosecutor the complainant or the accused notifies to the Court before which the case or appeal is pending his intention to make an application under this section in respect of such case or appeal, the court shall adjourn the case or postpone the appeal for such a period as will afford a reasonable time for the application to be made and an order to be obtained thereon.' Under the clause as it stood before the amendment of 1932 the application may be made at any stage of the trial; the only limitation being that it must be made before the commencement of the hearing. But under the present clause after the amendment in 1932, it must be made in any trial but before the defence closes its case. The word 'trial' is not defined in the present Code though it was defined in the Code of 1872. According to the definition contained in the Code of 1872 'trial' means the proceedings taken in court after a charge has been drawn up and includes the punishment of the offender. This is in accordance with the definition given by Privy Council in 'Basil Ranger Lawrence v. Emperor', where it has been held that trial means the whole proceedings including the sentence. That is a case from Nigeria and it is not known how the word is used in the Code. But the definition of this word has not only been dropped in the subsequent enactments; but the context in which the word is used in Sections 366 and 497 Clause (4) of the present Code shows that judgment does not form part of trial. Section 366 says that judgment in every trial shall be pronounced either immediately after termination of the trial or at some subsequent time etc. Section 497(4) says :
'That if at any time after the conclusion of the trial and before judgment is delivered...'
It is therefore clear that at any rate so far as these two sections are concerned, the word 'trial' is used only in a restricted sense, as riot including the judgment or sentence. In 'Ishar Singh v. Shama Dusadh', : AIR1937Pat131 certain observations were made as to what the expression 'before the defence closes its case' means. It is clear from the judgment that these observations are in the nature of obiter dicta and 'Raghu Singh v. Bhairo Prasad', : AIR1949Pat105 also refers to those observations only as obiter dicta.
8A. It is an elementary rule of construction that a word must be given the same meaning wherever it occurs in the same enactment, unless it is expressly given a different meaning in any particular section.
9. If therefore the word 'trial' in Sections 366and 497 Clause (4) means all proceedings uptojudgment and does not include judgment itmust be given the same meaning in Section 526(8)Crl. P.C But it has been held that 'trial' includes arguments of the pleaders on either Side. As already stated the application was made on 21st December 1947 when it was posted for arguments. In fact instead of advancing arguments on that day, the application under Section 526(8) was made. The application was therefore made in the course of trial. But under the clause, the application should be made not only in any trial but before the defence closes its case. When does the defence close its case is the question to be considered. The word 'case' is not defined in the Code. But it is used in relation to prosecution and defence in Sections 289 and 290 Crl. P.C.
10. Section 289(2) says:
'......... the prosecutormay sum up his case.' Section 290 refers to the summing up of the case by the defence. It is clear that in the two Sections 289 and 290, the word 'case' is used as meaning the stage when the examination of the witnesses is concluded on either side. The expression 'before the defence closes its case' means therefore! before the conclusion of the examination of the, witnesses for the defence. In the particular context in which the expression is used, I think that this is the meaning that has to be given to it. Giving this meaning then, in this case the defence closed its case on 2nd December 1947 and the application that was made on 21st December 1947 was made not before the defence closed its case but after it closed its case and the mandatory provisions of Section 526(8) do not apply to the application. The application was therefore rightly rejected.
11. The next question is whether the successor should have granted a de novo trial which was demanded by the petitioners after the successor took charge. The predecessor as stated before wrote out his judgment and was ready for delivery on 22nd December 1947 end as the accused did not appear on that day, he adjourned the case to 2nd January 1948 when the petition for de novo trial was presented. The successor was not then invested with powers to try the case and he therefore adjourned it to 17th January 1948. Before that date obviously he was conferred with the necessary powers and after hearing arguments on 11th February 1948 on the petition for de novo trial, he dismissed the same on 14th February 1948. A further adjournment was applied for for moving the High Court to revise the order and that also was dismissed and the judgment written by the predecessor and signed by him was pronounced by the successor and signed by him.
12. Under proviso to Section 350 Crl. P.C. in any trial the accused may when the second magistrate commences his proceedings, demand that the witnesses or any of them be resummoned and reheard. The accused is entitled of right to this de novo trial, as it is often called, only in a trial and when the successor commences the proceedings. In this case on 21st December 1947 when the case was posted for arguments, no arguments were advanced but a* application under Section 526(8) was made. I have already held supra that at that stage the Magistrate is not bound under the clause to adjourn the case and the application was rightly refused. The very fact that when the case is posted for arguments on a particular day and that on that particular day, instead of advancing arguments, the accused intimated to the court that he intends to move the High Court for a transfer shows that the accused did not intend to argue the case before the Magistrate and if the adjournment applied forwas, rightly refused, there was no other alternative left to the Magistrate but to deliver the judgment. He had therefore written the judgment which he was entitled to do in the circumstances, and once the judgment had been written and signed by him, the case has reached beyond the stage of trial. Even so the succeeding magistrate had a discretion under Clause (1) to Section 350 to act or not, on the evidence recorded by his predecessor. The procedure is left purely to the discretion of the Magistrate which is different from the right which the accused has under proviso (a) to the section. If the Magistrate does not choose to exercise his discretion under Clause (1) of Section 350, the accused has no right to demand it, the exercise of the right being limited to the stage of the conclusion of the trial. In this case the successor would have done well in the circumstances if he had exercised his discretion under Section 350(1). But he did not do so. Instead he adopted the judgment of his predecessor. The case as already stated had reached past the stage of trial and the refusal of the application for de novo trial was therefore in the circumstances not illegal. In 'Bhogole Chinna Somayya in re', AIR 1933 Mad. 251 Burn J. has held that in such circumstances the accused is not entitled to a de novo trial.
13. The result is the petition fails and isdismissed.