Ghose and Rampini, JJ.
1. This rule was granted for the purpose of considering the question whether the conviction in this case should be set aside, because at the time when sentence was pronounced by the Magistrate there was no judgment in existence..
2. The facts appear to be that the case was tried by Mr. Weston, an Assistant Magistrate. After the evidence was adduced on both sides, the case was. fixed for argument and judgment on the 19th November. On that day, the argument was heard, and the case adjourned to the 21st for judgment. On that day, the Magistrate had not written his judgment, but he pronounced sentence, finding the accused guilty under Section 147 of the Indian Penal Code recording an order to that effect. The judgment was, however, written on the evening of the same date, the 21st.
3. An appeal was preferred by the accused to the District Magistrate; and it seems to have been admitted before that officer, as appears from his judgment, that under Section 537 of the Code the irregularity committed by the Assistant Magistrate was not fatal to the conviction, unless it had occasioned a failure of justice, or materially prejudiced the accused; but it was contended that the accused had been so prejudiced, as the sentence was passed before full consideration of the evidence, and that the judgment had to be written up-afterwards to suit the sentence. The District Magistrate has, however, found that the accused was in no way prejudiced, as the Assistant Magistrate had taken time to consider judgment, and had evidently fully considered the case before passing sentence, though he had no time at the time to write the judgment itself. The District Magistrate then considers the merits, of the case, being of opinion that under Section 537 of the Code he ought to do> so, and after full consideration of the facts has held that the Assistant Magistrate was right in convicting the accused persons with, however, one exception.
4. It has been contended before us by the learned Counsel for the petitioners, that no judgment having been recorded and read out at the time the sentence was passed, the conviction was altogether bad, and should therefore be set aside, and that Section 537 of the Code does not cure the illegal act committed by the Assistant Magistrate; and he has relied in support of his argument, principally upon the opinion expressed by TREVELYAN, J., in the case of Damu Senapati v. Sridhar Rajwar I.L.R. 21 Cal. 121 and the judgment of the Allahabad Court in Queen v. Hurgobind Singh I.L.R. 14 All. 242.
5. There can be no doubt, as held in the case of Damu Senapati v. Sridhar Rajwar, that the judgment of the Assistant Magistrate was not in accordance with the provisions of Sections 366 and 367 of the Code; but we are not prepared to say, as it has been argued before us, that the sentence passed by the Magistrate was an illegal sentence, such as to vitiate the trial and render a. fresh trial necessary.
6. In the case of Damu Senapati just referred to, the facts were in one material respect different from the case before us. There, while the Counsel for the accused was arguing the case, the Magistrate was engaged in writing his-judgment, and so he did not listen to the arguments addressed to him, and when the sentence was pronounced he had not finished the judgment. On appeal, however, the Sessions Judge, upon a consideration of the evidence, came to the same conclusion as the Magistrate and affirmed the conviction. In this state of facts, TREVELYAN, J., held that the judgment of the Magistrate had not been arrived at in the way provided by law, and as the Magistrate had convicted the accused with out attending to the arguments of the Counsel, the trial was not a fair trial, and therefore the accused was entitled to a fresh trial. PRINSEP and O'Kinealy, JJ., however, came to a different conclusion; and, although they agreed with TREVELYAN, J., in holding that the judgment was not in accordance with the law, still they held that the irregularity committed by the Magistrate was one falling within Section 537 of the Code, and that no failure of justice having been occasioned by reason of that irregularity, there was no necessity for a re-trial.
7. We are not called upon in the present case to discuss which of the two conflicting views that were expressed in the case of Damu Senapati is the right one, for we take it that the facts, upon which those views were expressed, were essentially different from those before us. There, as has already been stated, the Magistrate pronounced sentence without listening to and considering the arguments in support of the defence; and this circumstance materially distinguishes that case from the one before us, where the Magistrate bad, after consideration of the arguments addressed to him, reserved judgment, and apparently after full consideration, pronounced sentence, though he had not the judgment ready at the time. We think that in the circumstances of this case, the omission of the Magistrate in recording a judgment before pronouncing his sentence is an omission or irregularity which falls within the purview of Section 537 of the Code, and it can hardly be said that the sentence itself by reason of this irregularity was an illegal sentence altogether, so as to render the trial nugatory.
8. In the case of Hurgabind Singh, before the Allahabad High Court, the learned Judges held that the Sessions Judge had committed various illegalities and irregularities in the trial of the case; one of them being that immediately or shortly after the opinions of the assessors were delivered, he passed his sentence, which was one of death, without recording a judgment in accordance with Section 367 of the Code; and they held that, inasmuch as the sentence could only follow and not precede the decision contained in a written judgment, the sentence was illegal. It does not appear whether the learned Judges considered the provisions of Section 537 of the Code. But, however that may be, they did not set aside the conviction on that ground and order a fresh trial, but examined the evidence, as a Court of Appeal, and set aside the conviction on the merits.
9. The course followed by the Allahabad Court is that which the District Magistrate adopted in this case; and he has, as already mentioned, after full consideration of the evidence, come to the conclusion that the conviction is right.
10. Having regard to the circumstances of this case, we are unable to say for the petitioners that there has been any failure of justice in this case by reason of the omission of the Assistant Magistrate in recording a judgment before pronouncing sentence, and that there has been no fair trial in this case, so as to render a fresh trial necessary.
11. We accordingly discharge the rule.