Skip to content


Thikka Surya Rao and ors. Vs. Sirangu Sathiraju and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1948Mad510; (1948)1MLJ396
AppellantThikka Surya Rao and ors.
RespondentSirangu Sathiraju and anr.
Cases ReferredVenkataswami Naidu v. Akkulaiya Naidu C.M.A. No.
Excerpt:
.....section cannot be a 'trial' wherein the provisions laid down for the trial of cases under the criminal procedure code have to be adopted and following the observations contained in the decisions above mentioned by which i am bound, i am inclined to hold that a decision under section 145, criminal procedure code, cannot be a judgment within the meaning of the term in section 367. 5. it is significant to note that sub-section (6) of section 367 enacts that for the purposes of this section an order under section 118 or section 123, sub-section (3), shall be deemed to be a judgment. the well-known legal maxim expressio unius est exclusio alterius applies to the construction of section 367. this means that when an express provision is made to treat the orders under sections 118 and.....ordergovinda menon, j.1. in proceedings under section 145, criminal procedure code in m.c. no. 11 of 1946 on the file of the sub divisional magistrate, amalapuram, it was declared under section 145, clause (4) and (6) that p.w. 5 was having possession of the disputed land through his agent p.w. 1 ever since delivery was given to him on 7th october, 1945 and that he had been having such possession, of the land on 15th may, 1946 when the preliminary order was passed.2. the petitioners in this court were respondents 1 to 3 in the lower court and on their behalf mr. v.t. rangaswami ayyangar raises a question regarding the validity of the order of the lower court on the ground that the magistrate who pronounced the order in court, on the 6th january, 1947 did not conduct the inquiry or pass.....
Judgment:
ORDER

Govinda Menon, J.

1. In proceedings under Section 145, Criminal Procedure Code in M.C. No. 11 of 1946 on the file of the Sub Divisional Magistrate, Amalapuram, it was declared under Section 145, Clause (4) and (6) that P.W. 5 was having possession of the disputed land through his agent P.W. 1 ever since delivery was given to him on 7th October, 1945 and that he had been having such possession, of the land on 15th May, 1946 when the preliminary order was passed.

2. The petitioners in this Court were respondents 1 to 3 in the lower Court and on their behalf Mr. V.T. Rangaswami Ayyangar raises a question regarding the validity of the order of the lower Court on the ground that the Magistrate who pronounced the order in Court, on the 6th January, 1947 did not conduct the inquiry or pass orders but had only pronounced an order written and signed by his prede-cessor on the 4th January, 1947. It was Mr. K. Kondal Rao, Sub-Divisional Magistrate, who heard the evidence and passed orders without pronouncing the same before he was relieved of that office and succeeded by Syed Mahaboob Sahib Bahadur who pronounced the orders written and signed by his predecessor. On this ground it is objected that there was no proper disposal of M.C. No. 11 of 1946 and that the order sought to be revised was void and without jurisdiction and therefore inoperative.

3. It is urged that the final order of the lower Court is a 'judgment' within the meaning of the word in Sections 366 and 367, Criminal Procedure Code and therefore on the authority of certain decisions, I am asked to hold that a succeeding Magistrate has no jurisdiction to pronounce the judgment written and signed by his predecessor while the latter was not functioning as a Magistrate. There is no provision in the Criminal Procedure Code akin to Order XX, Rule 2, Civil Procedure Code, which lays down that a judge may pronounce a judgment written but not pronounced by his predecessor. In Halsbury's Laws of England (Hailsham), Vol. IX, paragraphs 260 to 264, there is a discussion regarding the meaning and purport of the word ' Judgment' in criminal procedings and the conclusion stated there is that by the word 'Judgment' is meant a final order in a trial terminating in the conviction or acquittal of the accused. In Section 2., Clause (9), Civil Procedure Code, judgment is defined as a ' Statement given by the Judge of the grounds of a decree or order'. As there is no definition of the word 'Judgment' in the Criminal Procedure Code at all it will be proper to adopt the explanation of the word as understood in the English Courts referred to in Halsbury's Laws of England. In Emperor v. Maheswara Kondaya I.L.R. (1908) Mad. 543 it is laid down that though the word ' Judgment' is not defined in the Criminal Procedure Code, it is sufficiently clear from Sections 366 and 367, Criminal Procedure Code, that it is intended to indicate the final order in a trial terminating in either the conviction or the acquit-tal of the accused. In a very recent decision in Kuppuswami Rao v. The King I.L.R. (1908) Mad. 543, Kania, C.J., delivering the Judgment of the Federal Court of India has accepted the interpre-tation of the word ' Judgment' to be the same as given by this Court in Emperor v. Maheswara Kondaya I.L.R. (1908) Mad. 543 and approved of by Sulaiman, J., in Hori Ram Singh's case3.

4. In the light of these authorities, the question has to be considered as to whether the order of the Sub-Divisional Magistrate declaring one of the parties to be in possession within two months of the preliminary order is a Judgment. Sections 366 and 367 do not in terms apply to proceedings under Section 145, Criminal Procedure Code. It is well settled that proceedings under the latter section cannot be a ' trial' wherein the provisions laid down for the trial of cases under the Criminal Procedure Code have to be adopted and following the observations contained in the decisions above mentioned by which I am bound, I am inclined to hold that a decision under Section 145, Criminal Procedure Code, cannot be a Judgment within the meaning of the term in Section 367.

5. It is significant to note that Sub-section (6) of Section 367 enacts that for the purposes of this section an order under Section 118 or Section 123, Sub-section (3), shall be deemed to be a Judgment. Therefore, one can safely assume that the Legislature did not intend to apply the term ' judgment' to the order under Section 145, Criminal Procedure Code. The well-known legal maxim Expressio unius est exclusio alterius applies to the construction of Section 367. This means that when an express provision is made to treat the orders under Sections 118 and 123(3) as judgments, it follows that other orders except those that are finally passed in trials do not come within the category of judgments.

6. On a reading of the section itself, it will be clear that the final adjudication of the proceedings under that section is not intended to be a judgment at all. Sub-section (4), Section 145 lays down that the Magistrate after perusing the statements put in shall hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any), as he thinks necessary and, if possible, decide whether any and which of the parties was in possession on the date of the preliminary order.

7. Sub-section (6) says that if the Magistrate decides that one of the parties was or should under the first proviso to Sub-section (4) be treated as being in such pos-session on the date of the preliminary order, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom. The use of the words ' decide ' and ' issue an order ' indicate that what was intended was only an order and not a final judgment.

8. Mr. Rangaswami Ayyangar invited my attention to a decision in Patan Alli Khan v. Emperor : AIR1947Mad248 , where Horwill, J., in delivering the judgment of the Bench on the facts of that particular case, held that in a sessions case where evidence was recorded and arguments heard by one Sessions Judge who dictated the judgment to the shorthand writer, corrected the transcript and signed the judgment after he handed over charge to his successor who pronounced it in open Court on behalf of the Judge who dictated and signed the judgment it was not a valid pronouncement as contem-plated by Section 367 and therefore could not be taken to be a judgment by which the accused were either legally convicted or acquitted. In support of this view the learned Judge compares and contrasts the provisions of Order XX, Rule 2, Civil Procedure Code, and refers to certain proceedings of the Madras Suddar Court dated nth June, 1861, and of the 7th of August, 1860. Section 350 was also referred to for the purpose of contrasting the provisions of that section which admittedly are not applicable to the proceedings before a Sessions Court. Two decisions of our Court in Sankara Pillai In re2, and Savarimuthu Pillai v. Muthu Pillai (1916) 32 M.L.J. 81 : I.L.R. 40 Mad.108., respectively were discussed by the learned Judge and it was held that as Section 350 is not applicable to proceedings before a Sessions Court those decisions cannot apply to the judgment in that particular case. There was a further distinction made by the learned Judge, and that was, that in both those decisions the Magistrate continued in the office when he wrote the judgment and it was only delivered by his successor and nothing more; whereas in the Sessions case which was the subject of decision before the learned Judge, the judgment was dictated at a time when the particular Sessions Judge had already handed over charge of his office to his successor. It is not Mr. Rangaswami Ayyangar's contention that this decision is applicable ad idem to the present case. All that he wants me to say is that the general principle enunciated therein, viz., that a judgment delivered by a Judge in a criminal case who was not the presiding officer and who did not hear the evidence is invalid in law. I cannot accede to this contention for the reason that in the decision in Patan Alli Khan v. Emperor : AIR1947Mad248 , unlike in the present case the Sessions Judge when he wrote the judgment had handed over charge of his office and was not empowered to function as a judge in that particular Sessions division when he dictated the judgment. So far as the present case is concerned when the Magistrate wrote the order and signed it, he was a Magistrate. It was pronounced in Court by his successor. That Section 350(1) is applicable to proceedings under Section 145, Criminal Procedure Code, will be clear from Arm Shaikh v. Emperor I.L.R. (1910) Cal. 812, where Harington and Teunon, JJ., were of the view that where a Magistrate who had commenced an inquiry under Section 145, Criminal Procedure Code, is transferred and the District Magistrate had made over the case to another Magistrate the latter has power under Section 350 to proceed with it without examining the witnesses de novo. The proviso to Section 350(1) cannot apply to proceedings under Section 145, because the parties to such proceedings cannot be termed as accused nor can the proceedings be designated as trials. In addition, in a very recent case Venkataswami Naidu v. Akkulaiya Naidu C.M.A. No. : (1948)1MLJ17 , dated, 16th January, 1948, the learned Chief Justice has laid down that in respect of proceedings under Section 145, Criminal Procedure Code, an action for malicious prosecution is not maintainable because the proceedings under this section cannot be termed as a prosecution.

9. There is no provision anywhere in the Criminal Procedure Code that an order passed under Sub-clause (6) to Section 145 shall be pronounced in open Court. All that the section lays down is that the Magistrate shall ' issue an order.' Mark the words ' issue an order ' in contrast with ' pronounce an order.' If the Magistrate after deciding that one of the parties is in possession, writes and puts his signa-ture to an order and serves it on the parties through the agency of the police or otherwise that would be a compliance with the provisions of Sub-clause (6). It is unnecessary that he should follow the procedure laid down in Sections 366 and 367, i.e., that he should pronounce it in open Court or in the presence of the parties. As the marginal note to Sub-clause (4) to Section 145 itself states, the action of the Magistrate in hearing evidence and coming to a conclusion regarding the possession by either of the parties is only an inquiry and not a trial. These proceedings are only quasi criminal in nature where the Magistrate is entitled even to allow costs to the successful party.

10. In view of the foregoing discussion I conclude that a proceeding under Section 145, Criminal Procedure Code, is not a trial, the order issued by the Magistrate under Sub-clause (6) of Section 145 is not a judgment and therefore the provisions of Sections 366 and 367 are not applicable and if at all, the provisions of Section 350 alone are applicable. The action of the succeeding Magistrate in pronouncing the order of his predecessor in Court is perfectly justified and is not open to revision which is therefore dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //