1. In this case the rule was granted on the ground that prima facie no proper judgment had been recorded in accordance with law by the Magistrate, raising the question whether in such a case a re-trial should be had.
2. It appears that a re-trial on a charge of rioting was conducted by the Magistrate at a somewhat unusual length, the prisoners being represented by Mr. K. B. Dutt, an Advocate of this Court. Late in the day, the trial being completed, the Magistrate proceeded to deliver judgment. It is beyond doubt that at the time that he passed sentence on the accused he bad not, in accordance with law, delivered his judgment by pronouncing it in open Court, When Mr. K. B. Dutt asked leave to read it, it was refused, but the judgment was read out to him by the Court Head-Constable under the orders of the Magistrate. At the end of the judgment, under the signature of the Magistrate, there is a note recorded in the following terms: 'At the request of the accused's counsel, the judgment has been read over to him, by order of the Court, by the Head-Constable, Babu Lal Sukul, as it was being written out. M. A. Kadar, Deputy Magistrate.' The explanation given by the Magistrate after the issue of the rule is not altogether consistent with this statement; but the terms of this note leave no doubt that when sentence was pronounced and the judgment was being read over by the Head-Constable under the direction of the Magistrate, it had not been completed. There can be no doubt that the judgment so pronounced is one not in accordance with Sections 366 and 367 of the Criminal Procedure Code, and if the case had remained here, I should have been in favour of directing a fresh trial. It is impossible for any judicial officer, before a judgment has been finished, to be quite certain whether on a further consideration he will not arrive at a conclusion different from that originally formed, and it would be most dangerous to allow a sentence to be passed and a judgment setting out the reasons for the conviction and sentence to be afterwards written out. But the case did not remain in the Magistrate's Court.
3. An appeal was preferred to the Sessions Court.
4. No objection can fairly be raised against the judgment of that Court, which is full and complete, and deals thoroughly with the whole of the evidence taken at the trial as well as with the objections taken to the proceedings of the Magistrate. It does not appear, however, from that judgment that objection was taken to the manner in which judgment was recorded by the Magistrate. Whether such objection was or was not taken in the course of the argument is not certain. It is pointed out that this objection was taken in the petition of appeal presented to the Sessions Judge. I am not prepared to hold that because any objection may be set out in a petition of appeal, it was necessarily taken in the course of the argument before the Appellate Court; nor am I inclined to hold that it is the duty of an Appellate Court when the persons before it are properly represented, to do more than to consider the arguments raised at the hearing of the appeal; or that it is necessary for an Appellate Court, in addition to those arguments, to consider what is also set out in the petition of appeal, so as to enable any party affected by its judgment to take advantage of any ground raised in the petition of appeal which is not referred to in the judgment delivered, and without showing to the satisfaction of the Superior Court that the particular objection was taken at the hearing of the appeal.
5. It appears from the judgment of the Sessions Judge on appeal that serious objections were taken by the learned Counsel for the appellants to the manner in which the trial was conducted, referring generally to the conduct of the Magistrate while evidence was being recorded. All those objections have been considered and disallowed by the Sessions Judge, who has expressed his regret that 'allegations of unfairness and partiality should have been seriously made upon such trivial materials in respect of a Magistrate of long experience and unblemished reputation.' Nothing has been said before us in respect of these remarks.
6. The question now remains for me to consider on this rule, whether, the case having been fairly tried out on the evidence on the record in the course of appeal, and the opinion of the Sessions Judge properly recorded in favour of the conviction of the appellants by order of the Magistrate, any irregularity in the manner of recording or delivering his judgment by the District Magistrate should be regarded as fatal to the trial so as to require a re-trial. It seems to me that such an irregularity is one contemplated by Section 537 of the Code of Criminal Procedure, and that in this case it has not occasioned any failure of justice. It is a matter of regret that such an irregularity on the part of the Magistrate should have occurred at all. Having regard to the lateness of the hour (which is stated to be 6-30 P.M.) at which the proceeding's were concluded, the Magistrate would have exercised a better discretion if he had postponed the delivery of judgment until the following day. The irregularity having, in my opinion, occasioned no failure of justice, I would discharge the rule.
7. The other point raised in the rule was not made the subject of argument.
8. As I do not agree with Trevelyan, J., the case must go to a third Judge to be appointed by the Chief Justice.
9. I agree with Mr. Justice Prinsep in thinking that the judgment of the Deputy Magistrate was not pronounced in accordance with the law. There can be no doubt from the note appended by the Deputy Magistrate to his judgment that sentence was given before the judgment was completed. There is also no doubt, from the explanation of the Deputy Magistrate, that he was writing his judgment when the argument was going on. It follows from this that he did not, as was His duty, attend to the argument of counsel. The so-called judgment was therefore not arrived at in the way provided by law, and, as the learned Deputy Magistrate came to the conclusion without attending to the arguments of counsel, it follows that the trial before him was not a fair one.
10. The question remains whether the action of the Deputy Magistrate was set right by the fact that the Appellate Court did its duty. I regret that on this question I am unable to agree in the conclusion arrived at by my learned colleague. I think that the terms of Section 537, Criminal Procedure Code, are inapplicable to the present case. This is more than a case of a mere 'error, omission or irregularity' in the judgment or proceedings. In my opinion there has been no judgment in accordance with the law. As I understand a 'judgment,' it means the expression of the opinion of the Judge or Magistrate arrived at after due consideration of the evidence and of the arguments. As the Magistrate was doing other things at the time, there can have been no due consideration of the arguments, and the sentence seems to have been passed before, and not after, the consideration of the evidence. This course must in every case be unfair to an accused person. If it be unfair, it seems to me that he must be prejudiced by it. In my opinion there is not in substance much, if any, difference between the circumstances of this case and a case where the Magistrate declines to bear evidence or argument and sentences an accused person. As I understand the law laid down in the Criminal Procedure Code, every accused person is entitled to a fair and impartial trial and a judgment given in the way I have above suggested. A judgment ought to be given by a Magistrate who has had the witnesses before him. It is not sufficient that there be a judgment on paper evidence. In this case, as there pretends to be a judgment of the first Court dealing with the facts, the mischief is, I think, greater than if there had been no judgment at all. An Appellate Court naturally, to a great extent, relies upon conclusions formed by Judges who have had the witnesses before them. Where the judgment of the first Court is arrived at in a way which the law does not recognise, the Appellate Court is misled, and the appellant is the more prejudiced.
11. If the fact that the Appellate Court has tried the case rightly, gets rid of a defect in the trial by the Court of First Instance, it might equally be that a fair trial by the first Court would cure an unfair trial by the Appellate Court. I think that the accused is entitled to a fair trial by each Court.
12. In my opinion the conviction and sentence should be set aside and a new trial ordered.
13. In this case the petitioners were convicted by the Deputy Magistrate of Midnapore and sentenced; and in addition to that, they were bound down to keep the peace.
14. The petitioners appealed to the Sessions Judge; and he, on the 5th of June 1893, confirmed the conviction and sentence of the Deputy Magistrate.
15. On the 15th of June they applied to this Court, as a Court of Revision and obtained the following rule [After reading the rule (see ante page 123) His Lordship continued]:
In order to understand this rule, it must be borne in mind that the petitioners asserted that the Deputy Magistrate had convicted the prisoners before hearing the whole argument of the accused, and was writing his judgment during a portion of the argument. The rule, neither in terms nor in purport, refers to the trial which took place before the Court of Sessions. There would be some difficulty in setting aside the whole trial on the ground of irregularity in the Deputy Magistrate's Court, without setting aside the order of the Court of Sessions; but for this no rule was obtained. But apart from this, I think that the view taken of the case by Mr. Justice Prinsep is correct. I admit the great force in the view put forward by Mr. Justice Trevelyan in regard to the necessities of the Code being complied with; but, on the other hand, I am clearly of opinion that the irregularity in this case falls within Chapter 95 of the Code of Criminal Procedure, and that this Court is precluded by the terms of Section 537, from interfering with the orders of the Sessions Judge.
16. The rule is therefore discharged.