Skip to content


Jogesh Chandra Roy Vs. Surendra Mohan Roy Chaudhuri - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1931Cal637
AppellantJogesh Chandra Roy
RespondentSurendra Mohan Roy Chaudhuri
Cases ReferredA. T. Sankaralinga Mudaliar v. Narayana Mudaliar A.I.R.
Excerpt:
- .....on three grounds. the first ground is that the judgment having been written and signed by the learned judge mr. ellis when he had ceased to have jurisdiction in the district of tipperah, was ultra vires and illegal, and it could not be legally delivered by mr. b. n. mitra, and was as such wholly inoperative in law. the judgment purports to be signed by mr. t. h. ellis on 24th july 1930. but towards the end of the judgment it is stated as follows:i must hero observe that the decision of this appeal involved the reading of a considerable volume of evidence and several police diaries. i finished hearing the appeal in the afternoon of 19th july. i was then under orders of transfer to dacca, and actually made over charge of my post as district judge of tipperah on 21st july 1930. i had.....
Judgment:

S.K. Ghose, J.

1. This rule is directed against an appellate order of acquittal on charges under Sections 193, 192 and 211, I. P.C., and it was issued on three grounds. The first ground is that the judgment having been written and signed by the learned Judge Mr. Ellis when he had ceased to have jurisdiction in the district of Tipperah, was ultra vires and illegal, and it could not be legally delivered by Mr. B. N. Mitra, and was as such wholly inoperative in law. The judgment purports to be signed by Mr. T. H. Ellis on 24th July 1930. But towards the end of the judgment it is stated as follows:

I must hero observe that the decision of this appeal involved the reading of a considerable volume of evidence and several police diaries. I finished hearing the appeal in the afternoon of 19th July. I was then under orders of transfer to Dacca, and actually made over charge of my post as District Judge of Tipperah on 21st July 1930. I had no time to write this judgment before my departure; so I have written the judgment in Dacca and now-forward it to my successor for delivery.

2. It appears that on 26th July the judgment as written by Mr. Ellis, was delivered by Mr. B. N. Mitra who was then the Sessions Judge. It also appears that when Mr. Ellis wrote the judgment ho had ceased to be the presiding Judge of the Sessions Court of Tipperah.

3. The learned Advocate General appearing in support of the rule has contended that such a judgment is not contemplated by Sections 366 and 367 read with Section 424, Criminal P.C. I may point out that under Order 20, Rule 2, Civil P.C., a Judge may pronounce a judgment written but not pronounced by his predecessor, and that there is no such corresponding provision in the Criminal Procedure Code. One reason of this may be that the judgment of a criminal Court entails consequences which affect the person more closely than that of a civil Court and the consequences follow immediately, unless there is leave of the Court to the contrary. Hence it may be necessary that the presiding officer delivering the judgment should be the officer who is responsible for the reasons therefor. I am supported in this by the case of Mahomed Rafique v. Emperor A.I.R. 1926 Cal. 537, which states as follows:

Section 350, Criminal P.C., no doubt authorizes a Magistrate to try a case on evidence recorded by his predecessor but there is no authority for the proposition that a Magistrate who succeeds his predecessor can deliver a judgment which had been written out by his predecessor without considering the evidence on the record and without hearing the arguments, if any, on behalf of the accused. Such a procedure cannot stand to reason, because the Magistrate who himself makes responsible for the judgment, must always be the Magistrate who before delivery of the judgment had considered the evidence on record fairly and impartially and had also listened to the arguments, if any, on behalf of the accused.

4. This case followed the decision in the case of Baisnab Charan Das v. Amin Ali : AIR1924Cal55 . In view of these two decisions of this Court, we are not prepared to follow the case of Sankara Pillai v. Emperor [1908] 7 Cr. L.J. 459, nor can we say, following the decision, in the Full Bench case of A. T. Sankaralinga Mudaliar v. Narayana Mudaliar A.I.R. 1922 Mad. 502, that in the present case we ought not to interfere in revision. It must be held that the judgment in the present case was passed without jurisdiction and therefore is liable to be set aside.

5. On the merits also the petitioner is entitled to succeed on ground No. 4, which is to the effect

that the learned Judge acted illegally and with material irregularity in deciding the appeal on the assumption that the statement Ex. 1 was inadmissible in law by reason of the provisions of Section 162, Criminal P.C.

6. It is unnecessary to state the facts, but I may say that the statement Ex. 1 was one which the opposite party Surendra made before a police officer and he recorded it. This happened in the course of the investigation into a case which was started on information lodged] by the opposite party Surendra to the affect that the petitioner Jogesh was in possession of a gun and other implements without license. The learned Judge considers that the statement Ex. 1 is of doubtful admissibility by reason of Section 162, Criminal P.C. That might be a good ground in the original case against the petitioner Jogesh, but in the present case against the opposite party Surendra that objection does not apply. On the other hand it would be evidence with regard to the res gestae for which the opposite party was being prosecuted on charges under Sections 193, 192 and 211, I. P.C. In this view the judgment of the learned Judge must be set aside and the appeal must be sent back to the Sessions Judge of Tipperah in order that it may be reheard.

Lort-Willianas, J.

7. I agree.


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