Thus, by now it is fairly settled that to constitute a judgment
rendered by a Criminal Court, it is not the operative part written in
the order sheet which would constitute the judgment but it is the
discussion on the merits of the prosecution evidence, the
arguments of both the sides and the findings based on reasons to
conclude the trial in conviction or acquittal, which would constitute
a judgment.
29. If the orders in the order sheet passed in the present cases would
constitute a judgment, then there is nothing to be appealed
against because there is no discussion at all of the prosecution
case and the reasons for recording of such finding which entitles
the accused to be acquitted.
30. In view of the authoritative pronouncements by the Supreme
Court in Jagdev Singh Talwandi (supra) and Yakub Abdul
Razak Memon (supra), the order passed in order sheet in favour
of each of the petitioner acquitting them of the charges by a two
line order would not constitute judgment, therefore, the trial has
not come to an end on the basis of such order. Moreover, the trial
Judge has mentioned in the order sheet that the judgment is
signed and dated in the open Court, however, there is no
judgment available in the record of the Court, therefore, the Judge
himself had construed that there is a separate document which he
has referred as judgment, which is distinct and separate than the
order in the order sheet wherein the acquittal is recorded.
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 2796 of 2008
Smt. Kiran Singh
Versus
The State Of Chhattisgarh,
Coram:
Hon'ble Shri Justice Prashant Kumar Mishra
Dated:18 /02/2016
Citation: 2016 CRLJ2793
Factual matrix :
1. Petitioners would assail the common order dated 07.03.2008
passed by the High Court of Chhattisgarh through its Registrar
General transferring ST No.148/99 (State v. Smt. Kiran Singh
and Others) and ST No.71/95 (sic 71/99) (State v. T.P. Ratre)
along with one civil suit and two civil appeals from the Court of
Shri L.R. Thakur, Second Additional District & Sessions Judge,
Ambikapur (for short “the ASJ”) to the Court of District & Sessions3
Judge, Surguja at Ambikapur (for short “the SJ”) for re-hearing the
cases in accordance with law.
2. WP CR Nos.2796 and 2238 have been preferred by the accused
of ST No.148/99, wherein they were facing trial for committing
offences punishable under Sections 498-A and 304-B of the
Indian Penal Code (for short 'the IPC'), whereas, in WPCR
No.276/2010, the petitioner was facing trial in ST No.71/95 for
commission of offence under Section 306 of the IPC.
3. In ST No.148/99, the trial Judge passed an order in order sheet
on 31.10.2007 declaring that the judgment is written, signed and
dated separately. In ST No.71/95 also similar order was passed
by the ASJ on 28.01.2008 observing that the judgment is typed
separately and is signed & dated.
4. The Presiding Officer has passed such orders in order sheets in
two Sessions Trial, one Civil Suit & two Civil Appeals, therefore,
one Shri Sushil Kumar Chaturvedi, Advocate, Member, State Bar
Council made a complaint to the High Court on 12.02.2008, upon
which the Registrar (Vigilance), High Court of Chhattisgarh issued
a memorandum to the District & Sessions Judge, Ambikapur on
18.02.2008 to enquire into the matter and submit the report. The
District & Sessions Judge submitted a report to the High Court on
the same day i.e. 18.02.2008 substantiating the allegations
against the Presiding Officer. 4
5. It was informed by the District Judge that in ST Nos.148/99 &
71/95, Civil Suit No.1-A/2006, Civil Appeal No.24-A/2006 (old
No.11-A/2005) and Civil Appeal No.17-A/2006, Shri L.R. Thakur,
the Second ASJ has purportedly delivered the judgments, but the
judgments are not available in the file, because they have not
been written. Thereafter, the mater was placed before the Full
Court on 04.03.2008 wherein the decision was taken to transfer
the cases from the Court of Shri L.R. Thakur Second Additional
District and Sessions Judge, Ambikapur to the Court of District
and Session Judge, Surguja at Ambikapur for re-hearing the
cases in accordance with law. Another resolution was passed by
the Full Court on the same day placing the Presiding Officer
under suspension with immediate effect in contemplation of
departmental enquiry in connection with the irregularities
committed by him in discharge of judicial work. The Departmental
Enquiry was duly completed and based on the enquiry report, the
Full Court eventually resolved to impose punishment of
compulsory retirement. By order dated 22.03.2011 the State
Government compulsorily retired the Presiding Officer from
the service on the recommendation of the High Court of
Chhattisgarh.
Submissions :
6. It is argued by Shri Rakesh Pandey & Shri Vaibhav A.
Goverdhan, learned counsel appearing for the petitioners, that the
order passed by the Second Additional Sessions Judge,5
Ambikapur acquitting the petitioners from the charges would
amount to judgment, therefore, the High Court acting through the
Registrar General was not legally competent nor it has jurisdiction
to direct transfer of the Sessions Trial to the Court of District and
Sessions Judge, Sarguja at Ambikapur for re-hearing. Learned
counsel would strenuously urge that the trial having come to an
end upon passing the order which amounts to judgment, nothing
remained for transfer or rehearing. In any event, the order passed
by the High Court on administrative side has the affect of setting
aside the judicial order passed by the ASJ, therefore, the order
impugned is without jurisdiction or authority of law.
7. Per contra, Shri Praveen Das & Shri Ashish Shrivastava, learned
counsel appearing for the High Court of Chhattisgarh and Shri
Shashank Thakur, learned Govt. Advocate appearing for the
State, would submit that the order passed by the ASJ was to be
based on a detailed judgment purportedly passed, dated and
signed separately, however, there being no such separate
judgment, the trial did not come to an end, therefore, in an
extraordinary situation like the present, the High Court has rightly
transferred the cases to the Court of SJ.
8. Learned counsel appearing for the parties have placed reliance
upon the following judgments State of Kerala v. M.K.
Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead) and
Others1
, Janardhan Reddy & Others v. The State of
1 (1996) 1 SCC 435 : AIR 1996 SC 9066
Hyderabad & Others2
, Yakub Abdul Razak Memon v. State of
Maharashtra, through CBI, Bombay3
, Shambhu and others v.
The State4
, Udai Narainv. State of U.P. and Others5
, Surendra
Singh and Others v. State of Uttar Pradesh6
and Radhey
Shyam and Another v. Chhabi Nath and Others7
.
Issues arising :
9. The issue for consideration is what constitutes a judgment in a
criminal trial and when it can be said that the judgment satisfies
the legal requirement so as the same to be a legally binding
document, which terminates the proceedings in the manner
provided in the Code of Criminal Procedure, 1973 (for short “the
Cr.P.C.). The other issue is about the jurisdiction and authority of
the High Court in exercising administrative powers to treat the trial
as pending and thereafter, transferring the same from the Court of
ASJ to the Court of SJ.
10. Since the writ petitions arise out of Sessions Trial needless to say
that the procedure prescribed for trial before a Court of
Sessions provided in Chapter XVIII of the Cr.P.C. was followed by
the ASJ.
11. The word 'judgment' is not defined in the Cr.P.C. After closure of
the evidence of prosecution, as provided under Section 231, the
2 AIR (38) 51 Supreme Court 217
3 (2013) 13 SCC 1
4 AIR (43) 1956 Allahabad 633
5 2000 Cri.L.J. 544
6 AIR (41) 1954 Supreme Court 194
7 2015 AIR SCW 18497
trial Judge is empowered under Section 232 to pass an order of
acquittal, if he thinks that the accused need not produce any
evidence in his defence, however, if the acquittal is not ordered
under Section 232, the Court shall call upon the accused to enter
on his defence and adduce any evidence he may have in support
thereof. After hearing arguments of either side (under Sections
234), the Sessions Court delivers the judgment of acquittal or
conviction under Section 235.
12. Section 235 of the Cr.P.C. is reproduced hereunder for ready
reference :
235. Judgment of acquittal or conviction.--
(1) After hearing arguments and points of law
(if any), the Judge shall give a judgment in the
case.
(2) If the accused is convicted, the Judge shall,
unless he proceeds in accordance with the
provisions of section 360, hear the accused on
the question of sentence, and then pass
sentence on him according to law.
13. Chapter XXVII of the Cr.P.C. from Section 353 to 365 contains
provisions in respect of 'the judgment'. Sections 353, 354, 362,
363, 364 and 365 need consideration for dwelling on the issue,
therefore, they are reproduced as under :
353. Judgment.--
(1) The judgment in every trial in any Criminal
Court of original jurisdiction shall be
pronounced in open Court by the Presiding
officer immediately after the termination of the
trial or at some subsequent time of which notice8
shall be given to the parties or their
pleaders,-
(a) by delivering the whole of the
judgment; or
(b) by reading out the whole of the
judgment; or
(c) by reading out the operative part of
the judgment and explaining the
substance of the judgment in a language
which is understood by the accused or his
pleader.
(2) Where the judgment is delivered under
clause (a) of sub-section (1), the presiding officer
shall cause it to be taken down in short-hand,
sign the transcript and every page thereof as
soon as it is made ready, and write on it the
date of the delivery of the judgment in open
Court.
(3) Where the judgment or the operative part
thereof is read out under clause (b) or clause (c)
of sub-section (1), as the case may be, it shall be
dated and signed by the presiding officer in open
Court, and if it is not written with his own hand,
every page of the judgment shall be signed by
him.
(4) Where the judgment is pronounced in the
manner specified in clause (c) of sub-section (1),
the whole judgment or a copy thereof shall be
immediately made available for the perusal of the
parties or their pleaders free of cost.
(5) If the accused is in custody, he shall be
brought up to hear the judgment pronounced.
(6) If the accused is not in custody, he shall be
required by the Court to attend to hear the
judgment pronounced, except where his
personal attendance during the trial has been
dispensed with and the sentence is one of fine
only or he is acquitted:
Provided that, where there are more
accused than one, and one or more of them do
not attend the Court on the date on which the
judgment is to be pronounced, the presiding9
officer may, in order to avoid undue delay in the
disposal of the case, pronounce the judgment
notwithstanding their absence.
(7) No judgment delivered by any Criminal
Court shall be deemed to be invalid by reason
only of the absence of any party or his pleader
on the day or from the place notified for the
delivery thereof, or of any omission to serve, or
defect in serving, on the parties or their pleaders,
or any of them, the notice of such day and
place.
(8) Nothing in this section shall be construed to
limit in any way the extent of the provisions of
section 465.
(Emphasis supplied)
354. Language and contents of judgment.--
(1) Except as otherwise expressly provided by
this Code, every judgment referred to in section
353,-
(a) shall be written in the language of the
Court;
(b) shall contain the point or points for
determination, the decision thereon and
the reasons for the decision;
(c) shall specify the offence (if any) of
which, and the section of the Indian Penal
Code (45 of 1860) or other law under
which, the accused is convicted and the
punishment to which he is sentenced;
(d) if it be a judgment of acquittal, shall
state the offence of which the accused is
acquitted and direct that he be set at
liberty.
(2) When the conviction is under the Indian
Penal Code (45 of 1860), and it is doubtful under
which of two sections, or under which of two
parts of the same section, of that Code the
offence falls, the Court shall distinctly express
the same, and pass judgment in the alternative.
(3) When the conviction is for an offence
punishable with death or, in the alternative, with10
imprisonment for life or imprisonment for a term
of years, the judgment shall state the reasons for
the sentence awarded, and, in the case of
sentence of death, the special reasons for such
sentence.
(4) When the conviction is for an offence
punishable with imprisonment for a term of one
year or more, but the Court imposes a sentence
of imprisonment for a term of less than three
months, it shall record its reasons for awarding
such sentence, unless the sentence is one of
imprisonment till the rising of the Court or unless
the case was tried summarily under the
provisions of this Code.
(5) When any person is sentenced to death,
the sentence shall direct that he be hanged by
the neck till he is dead.
(6) Every order under section 117 or
sub-section (2) of section 138 and every final
order made under section 125, section 145 or
section 147 shall contain the point or points for
determination, the decision thereon and the
reasons for the decision.
(Emphasis supplied)
362. Court not to alter judgment.--Save as
otherwise provided by this Code or by any other
law for the time being in force, no Court, when it
has signed its judgment or final order disposing
of a case, shall alter or review the same except
to correct a clerical or arithmetical error.
363. Copy of judgment to be given to the
accused and other persons.--
(1) When the accused is sentenced to
imprisonment, a copy of the judgment shall,
immediately after the pronouncement of the
judgment, be given to him free of cost.
(2) On the application of the accused, a
certified copy of the judgment, or when he so
desires, a translation in his own language if
practicable or in the language of the Court, shall
be given to him without delay, and such copy
shall, in every case where the judgment is
appealable by the accused, be given free of cost:11
Provided that where a sentence of death is
passed or confirmed by the High Court, a
certified copy of the judgment shall be
immediately given to the accused free of cost
whether or not he applies for the same.
(3) The provisions of sub-section (2) shall apply
in relation to an order under section 117 as they
apply in relation to a judgment which is
appealable by the accused.
(4) When the accused is sentenced to death
by any Court and an appeal lies from such
judgment as of right, the Court shall inform him
of the period within which, if he wishes to appeal,
his appeal should be preferred.
(5) Save as otherwise provided in subsection
(2), any person affected by a judgment or
order passed by a Criminal Court shall, on an
application made in this behalf and on payment
of the prescribed charges, be given a copy of
such judgment or order of any deposition or
other part of the record:
Provided that the Court may, if it thinks fit
for some special reason, give it to him free of
cost.
(6) The High Court may, by rules, provide for the
grant of copies of any judgment or order of a
Criminal Court to any person who is not affected
by a judgment or order, on payment, by such
person, of such fees, and subject to such
conditions, as the High Court may, by such rules,
provide.
364. Judgment when to be translated.-- The
original judgment shall be filed with the record of
the proceedings and where the original is
recorded in a language different from that of the
Court and the accused so requires, a translation
thereof into the language of the Court shall be
added to such record.
365. Court of Session to send copy of
finding and sentence to District Magistrate.--
In cases tried by the Court of Session or a Chief
Judicial Magistrate, the Court or such Magistrate
as the case may be, shall forward a copy of its or
his finding and sentence (if any) to the District12
Magistrate within whose local jurisdiction the trial
was held.
14. Chapter XXIX of the Cr.P.C. from Sections 372 to 394 contains
provisions in respect of 'appeals'. Section 378 provides for
appeal in case for acquittal and Section 382 provides for petition
of appeal. Sections 378 and 382 are reproduced as under :
378. Appeal in case of acquittal.--
(1) Save as otherwise provided in subsection
(2) and subject to the provisions of subsections
(3) and (5),
(a) the District Magistrate may, in any
case, direct the public prosecutor to
present an appeal to the Court of Session
from an order of acquittal passed by a
Magistrate in respect of a cognizable and
non-bailable offence.
(b) the State Government may, in any
case, direct the Public Prosecutor to
present an appeal to the High Court from
an original or appellate order of an
acquittal passed by any Court other than a
High Court not being an order under
clause (a) or an order of acquittal
passed by the Court of Session in
revision.
(2) If such an order of acquittal is passed in
any case in which the offence has been
investigated by the Delhi Special Police
Establishment constituted under the Delhi
Special Police Establishment Act, 1946 (25 of
1946), or by any other agency empowered to
make investigation into an offence under any
Central Act other than this Code, the Central
Government may, subject to the provisions of
sub-section (3), also direct the Public Prosecutor
to present an appeal,
(a) to the Court of Session, from an
order of acquittal passed by a Magistrate13
in respect of a cognizable and nonbailable
offence;
(b) to the High Court from an original or
appellate order of an acquittal passed by
any Court other than a High Court not
being an order under clause (a) or an
order of acquittal passed by the Court of
Session in revision.
(3) No appeal to the High Court under subsection
(1) or sub-section (2) shall be entertained
except with the leave of the High Court.
(4) If such an order of acquittal is passed in
any case instituted upon complaint and the High
Court, on an application made to it by the
complainant in this behalf, grants special leave to
appeal from the order of acquittal, the
complainant may present such an appeal to the
High Court.
(5) No application under sub-section (4) for the
grant of special leave to appeal from an order of
acquittal shall be entertained by the High Court
after the expiry of six months, where the
complainant is a public servant, and sixty days in
every other case, computed from the date of that
order of acquittal.
(6) If in any case, the application under subsection
(4) for the grant of special leave to
appeal from an order of acquittal is refused, no
appeal from that order of acquittal shall lie under
sub-section (1) or under sub-section (2).
382. Petition of appeal.--Every appeal shall be
made in the form of a petition in writing
presented by the appellant or his pleader, and
every such petition shall (unless the Court to
which it is presented otherwise directs) be
accompanied by a copy of the judgment or order
appealed against.
15. On a dissection of the provisions reproduced above, it would be
discerned that immediately after the termination of trial or at some
subsequent time, the criminal Court of original jurisdiction shall
pronounce judgment in open Court (a) by delivering the whole of14
the judgment; or (b) by reading out the whole of the judgment; or
(c) by reading out the operative of the judgment and explaining
the substance of the judgment in a language which is understood
by the accused or his pleader.
16. In the cases at hand, the judgment was not dictated in open
Court, as it was purportedly written, signed & dated separately,
therefore, clause (a) has no application. The trial Judge appears
to have proceeded under clause (b) or clause (c) by reading out
operative part of the judgment, signing and dating the same, as
provided under sub-section (3) of Section 353. In such a case,
copy of the judgment shall be immediately made available for
perusal of the parties or their pleaders free of cost.
17. The legal requirement of judgment, about its language and
contents are provided under Section 354. According to this
provision, the judgment shall be written in the language of the
Court and shall contain the point or points for determination, the
decision thereon and the reason for the decision. Section
362 of the Cr.P.C. bars alteration or review of the judgment
rendered by criminal Court except to correct a clerical or
arithmetical error.
18. Section 363 of the Cr.P.C. requires the Court to give copy of the
judgment free of cost to the accused where he is sentenced to
imprisonment. Whereas, Section 365 requires that in cases tried
by the Court of Session or a Chief Judicial Magistrate, the Court15
or such Magistrate as the case may be, shall forward a copy of its
or his finding and sentence (if any) to the District Magistrate within
whose local jurisdiction the trial was held.
19. In the present cases, an order of acquittal was passed in the
order sheet, however, there is no judgment recording the reasons
or findings based on appreciation of evidence, which persuaded
the ASJ to acquit the accused persons, therefore, the question
arises whether such order in the order sheets would constitute a
judgment ?
20. To appreciate as to what a judgment of a criminal Court would
mean, requires this Court to refer to the earlier judgments
rendered by the Supreme Court and the High Courts on the
issue.
21. In Shambhu (supra), the Allahabad High Court held thus in
regard to the words 'judgment' and 'order' :
4. The argument sounds plausible;
nevertheless I have no hesitation in holding
it to be untenable. A study of the provisions
of the Code of Criminal Procedure
discloses that the expression of the opinion
of the criminal court on any matter at issue
arrived at after due consideration of the
evidence and of the arguments (if any) falls
into two categories: judgments and orders.
Nonetheless neither of these terms has
been defined either in the Code of Criminal
Procedure or the Penal Code.
There is, however, no controversy as
to what a ‘judgment’ is. As held by the
Federal Court in Hori Ram Singh v. Crown
and S. Kuppuswami Rao v. R., it is used ‘to
indicate the termination of the case by an16
order of conviction or acquittal of the
accused’, and to this, by virtue of Section
367(6) CrPC must be added orders under
Section 118 or Section 123(3), orders
which bear the character of a conviction.
Chapter XXVI of the Code deals exclusively
with judgments and on the basis of its
exhaustive provisions there can be no
difficulty in recognising a criminal court’s
‘judgment’.
22. In Baldeo v. Deo Narain and Others8
, the Allahabad High Court
once again discussed as to how a judgment in criminal cases
should be and held thus in para 14 :
14. … Under Section 367 CrPC every
judgment must contain:
(1) the points for determination;
(2) the decision thereon; and
(3) the reasons for such
decision.
Where the reasons given by the trial court
are such as cannot be supported by the
evidence on record, they are not reasons
for the decision, but reasons against the
decision. To constitute a legal appreciation
of evidence, the judgment should be such
as to indicate that the Court has applied its
mind to it. Every portion of the judgment of
the trial court seems to indicate nonapplication
of mind by the Court to the
evidence on record. The third requirement
laid down in Section 367 CrPC viz. the
reasons for the decision, is an important
ingredient of a judgment. Compliance with
law in this regard should not be merely
formal but substantial and real, for it is this
part of the judgment alone which enables
the higher court to appreciate the
correctness of the decision, the parties to
feel that the Court has fully and impartially
considered their respective cases and the
public to realise that a genuine and sincere
8 AIR 1954 Allahabad 10417
attempt has been made to mete out evenhanded
justice. It is in the way the Court
discharges its duty in this regard that it is
able to instil confidence in its justice and to
inspire that respect and reverence in the
public mind which is its due. Reasons form
the substratum of the decision and their
factual accuracy is a guarantee that the
Court has applied its mind to the evidence
in the case. Where the statement of
reasons turn out to be a mere hollow
pretension of a baseless claim of
application of mind by the Court, the
judgment is robbed of one of its most
essential ingredients and forfeits its claim to
be termed a judgment in the eye of the
law.”
(Emphasis supplied)
23. The High Court of Gujarat in Ratia Mohan v. The State of
Gujarat9
referred to its earlier decision rendered in the matter of
Nathusing Vridhsingh v. Vasantlal R. Shah10 and held thus in
para 9 :
9. In this connection, I was referred to a
decision in Athipalayan, In re, wherein it
was held that the irregularity even in
pronouncing the judgment in open court
and signing and dating the same would
amount to an illegality vitiating the
conviction and sentence passed in the
case. While saying so, it has been
observed thus: (AIR p. 508, para 4)
‘… it is one of the glorious principles
of our criminal jurisprudence that we
do not try or sentence people in
absentia and we do not also convict
and sentence people without
judgments being pronounced in open
court and signed and dated then and
there. It may be different in the
9 AIR (56) 1969 Gujarat 320
10 AIR 1968 Gujarat 21018
continental system of criminal
jurisprudence.’
It was a case in which a sentence was
announced before the judgment, which was
the final decision of the court intimated to
the parties and the world at large by formal
pronouncement of delivery in open court by
the trial Judge and signing and dating it
simultaneously and thereby terminating the
criminal proceedings finally. In Nathusing
Vridhsingh v. Vasantlal R. Shah, the
question arose whether the order of
dismissal of a complaint under Section 203
of the Criminal Procedure Code without
recording any reasons amounts to an
irregularity or illegality curable under
Section 537 of the Criminal Procedure
Code and it was held that the order was
one in contravention of that provision and
such a breach of the provision renders the
order void and ineffective. It was not
curable under Section 537 of the Criminal
Procedure Code. Some observations made
by the Supreme Court in Willie (William)
Slaney v. State of M.P., were quoted to say
that ‘the complainant is entitled to know
why his complaint has been dismissed with
a view to consider an approach to a
revisional Court. Being kept in ignorance of
the reasons clearly prejudices his right to
move the Revisional Court and where he
takes a matter to the Revisional Court
renders his task before that Court difficult,
particularly in view of the limited scope of
the provisions of Sections 438 and 439 of
the Code of Criminal Procedure’. Those
observations may well apply in the present
case particularly when the accused has a
right of appeal against the order of
conviction and sentence passed in the case
and he would obviously be at a
disadvantage to assail the reasons which
were in the mind of the learned Magistrate
and which came out so late as on 6-2-
1968. The appellant-accused had a right to
know the reasons which led the learned
Magistrate to come to that conclusion. It
may well happen that after coming to know
about the accused going in appeal, the
learned Magistrate may try to record a19
proper judgment which otherwise he may
later on do in some other manner. In any
event, the learned Magistrate has clearly
contravened the imperative provisions
contained in Section 264 of the Criminal
Procedure Code by passing the sentence
without recording the judgment in the case
and has that way acted illegally. Such an
illegality cannot be treated as an irregularity
contemplated under Section 537 or an
omission as urged by Mr Nanavati so as to
become curable one. Even if it were to be
treated as such as coming within the ambit
of Section 537, it can easily be said that it
had occasioned failure of justice in the
circumstances of the case. In any view of
the matter, the order is, therefore, liable to
be set aside.”
(Emphasis supplied)
24. Way back in 1930 the Patna High Court in Jahri Lal v. Emperor11
held that pronouncing sentence before completing the judgment,
that is to say, before preparing the essential part of it, such as the
statement of points for determination and the reasons for the
decisions makes these sentences illegal and vitiates
conviction.
25. In State of Punjab and others v. Jagdev Singh Talwandi12, the
Supreme Court considered how the final order/judgment is to be
pronounced. It was held thus in para 30 :
30. We would like to take this opportunity
to point out that serious difficulties arise on
account of the practice increasingly
adopted by the High Courts, of pronouncing
the final order without a reasoned
judgment. It is desirable that the final order
which the High Court intends to pass
11 AIR 1930 Patna 148
12 (1984) 1 SCC 59620
should not be announced until a reasoned
judgment is ready for pronouncement.
Suppose, for example, that a final order
without a reasoned judgment is announced
by the High Court that a house shall be
demolished, or that the custody of a child
shall be handed over to one parent as
against the other, or that a person accused
of a serious charge is acquitted, or that a
statute is unconstitutional or, as in the
instant case, that a detenu be released
from detention. If the object of passing such
orders is to ensure speedy compliance with
them, that object is more often defeated by
the aggrieved party filing a special leave
petition in this Court against the order
passed by the High Court. That places this
Court in a predicament because, without
the benefit of the reasoning of the High
Court, it is difficult for this Court to allow the
bare order to be implemented. The result
inevitably is that the operation of the order
passed by the High Court has to be stayed
pending delivery of the reasoned judgment.
(Emphasis supplied)
26. Considering the above referred judgments, the Supreme Court in
the celebrated case of Yakub Abdul Razak Memon (supra)
concluded that 'it is evident that generally a judgment must be
complete and it must have points for determination, decision
thereon and reasons for such a decision. The basic requirement
for such ingredients appears to be that the superior court
(appellate/revisional) may be able to examine as to whether the
judgment under challenge has been rendered in accordance with
law and particularly, based on evidence on record. So, the
purpose of recording reasons is to facilitate the superior court to
examine the correctness of the judgment of the courts
below.'21
27. The Division Bench of the Patna High Court in Ramautar Thakur
and others v. State of Bihar13 held thus :
18. The Criminal Procedure Code, unlike
the Civil Procedure Code, does not define
'Judgment' A 'judgment' means the
expression of the opinion of the Court
arrived at after, a due consideration of the
evidence and all the arguments. The above
meaning of the word 'Judgment', as is to be
found in Full Bench decisions of the Madras
High Court in Re Chinna Kaliappa Goundan
ILR 29 Mad 126 (Q), of the Bombay High
Court in Emperor v. Nan-dial Chunilal : 48
Bom LR 41: AIR 1946 Bom 276) (FB) (R),
and of the Calcutta High Court in Damu
Senapati v. Shridhar Rajwar ILR 21 Cal 121
(S), was approved by their Lordships
Bhagwati and Imam JJ., in the Supreme
Court case just mentioned.
Their Lordships mentioned that the
observations of the Madras High Court in
its Full Bench decision, just referred to,
were quoted with approval by Sulaiman J.,
in Dr. Hori Ram Singh v. Emperor : AIR
1939 FC 43 (T), in which his Lordships
Sulaiman J., observed that the Criminal
Procedure Code did not define a 'judgment',
but various sections of the Code suggested
what it meant His Lordship then discussed
those sections and concluded that
'judgment' in the Code meant a judgment of
conviction or acquittal.
19. The question, therefore, for our
consideration is, is the order of dismissal
for default a 'judgment' ?
20. In the case of AIR 1928 Rang 238 (G),
it has been held that an order of
dismissal for default is not a 'judgment'
within the meaning of Section 369,
Criminal P. C.
21. In this connection the observation of
Sulaiman J., in 'Dr. Hori Ram Singh (T)',
above mentioned, which was held by the
13 AIR (44) 1957 Patna 33 22
Supreme Court to be sound, may be
reproduced below:
"It will be seen that an order under
Section 435 can with difficulty be
called a 'judgment'. All that a Judge
does at this preliminary stage is
either to send for the records of the
lower Court with a view to examining
them under Section 439 (1), or to
refuse to do so. it is difficult to see
how the latter can possibly be called
a judgment of conviction. When such
an order consists of the one word
'Dismissed' can it necessarily be
taken as a judicial pronouncement
that in the opinion of the Judge the
respondent was rightly convicted
upon the evidence? It seems to me
that all that it means is that the Judge
sees no adequate ground
disclosed in the petition or on the
face of the judgment for proceeding
further."
22. His Lordship Bhagwati J. in the
Supreme court case in delivering his own
'judgment and that of his Lordship Imam J.
observed thus:
"The order dismissing the appeal or
criminal revision summarily or in
limine would no doubt be a final
order of the High Court not subject to
review or revision even by the High
Court itself but would not tantamount
to a judgment replacing that of the
lower Court."
(Emphasis supplied)
28. Thus, by now it is fairly settled that to constitute a judgment
rendered by a Criminal Court, it is not the operative part written in
the order sheet which would constitute the judgment but it is the
discussion on the merits of the prosecution evidence, the
arguments of both the sides and the findings based on reasons to23
conclude the trial in conviction or acquittal, which would constitute
a judgment.
29. If the orders in the order sheet passed in the present cases would
constitute a judgment, then there is nothing to be appealed
against because there is no discussion at all of the prosecution
case and the reasons for recording of such finding which entitles
the accused to be acquitted.
30. In view of the authoritative pronouncements by the Supreme
Court in Jagdev Singh Talwandi (supra) and Yakub Abdul
Razak Memon (supra), the order passed in order sheet in favour
of each of the petitioner acquitting them of the charges by a two
line order would not constitute judgment, therefore, the trial has
not come to an end on the basis of such order. Moreover, the trial
Judge has mentioned in the order sheet that the judgment is
signed and dated in the open Court, however, there is no
judgment available in the record of the Court, therefore, the Judge
himself had construed that there is a separate document which he
has referred as judgment, which is distinct and separate than the
order in the order sheet wherein the acquittal is recorded.
31. The next point for consideration is - if the order passed by the trial
Judge in favour of the petitioners do not constitute a judgment
and the trial is said to be pending, whether the High Court, on its
administrative side can direct transfer of the case from the Court
of ASJ to the Court of SJ ?24
32. Learned counsel appearing for the petitioners would argue that
the Registrar General or for that matter the High Court has no
jurisdiction to pass the impugned order on administrative side
because the impugned order has the affect of reopening of trial
which can only be done by the High Court in appellate jurisdiction
and not on the administrative side.
33. At the first glance, the argument appears to be attractive,
however, in view of the discussion made in the preceding
paragraphs wherein this Court has held that the order passed by
the trial Judge in favour of the petitioners would not constitute a
judgment, hence, there was no occasion for the District
Magistrate to appeal against the said order on the judicial side. If
the trial did not come to an end because there was no judgment
by a criminal Court as required under the Cr.P.C., it was open for
the High Court to exercise its administrative power to transfer the
case so that the Presiding Officer who has committed such
serious error in more than one cases is not provided with an
opportunity again to deal with the cases. It was more so because
the Judge has formed an opinion about the matter without even
discussing the evidence adduced by the prosecution.
34. In regard to the High Court's power of superintendence under
Article 227 of the Constitution of India over all Courts and
Tribunals functioning within its territorial jurisdiction, the
Full Bench of the Bombay High Court in Balkrishna Hari25
Phansalkar v. Emperor14, while considering pari materia
provision under Section 107 of the Government of India Act,
1915, speaking through Beaumont, C.J., has held thus :
Now, what are those powers ? Under S.
107 the High Court has superintendence
over all Courts for the time being subject to
its appellate jurisdiction. It is not disputed
that rights of superintendence include not
only superintendence on administrative
points, but superintendence on the judicial
side too, and that under its power of
superintendence the High Court can correct
any error in a judgment of a Court subject
to its appellate jurisdiction......
xxx xxx xxx
…...Experience shows that irregularities
and illegalities do creep into the
administration of the law, and I think myself
that it would be unfortunate if the High
Court had no power to correct any
irregularity or illegality in the proceedings of
any of these special Courts. We must
therefore deal with this revision application
which has been admitted on its merits.
While delivering the minority judgment, Nanavati, J. one of the
Judges of the Full Bench in Balkrishna Hari Phansalkar (supra)
has succinctly observed about the public confidence in the
fairness and moderation of the Courts. The judgment was
concluded by Nanavati, J. by observing thus :
…....It is perhaps not sufficiently recognised
that public confidence in the impartiality
and moderation of the Courts is of great
value in itself in preserving the public
peace, and indeed on occasion it may be of
more use than battalions of troops or
police. It is necessary in the interests of
14 AIR 1933 Bombay 126
public peace itself that that confidence
should be maintained, and it is therefore
not merely from the point of view of the
accused in the present case, but also from
the wider point of view of preserving the
confidence of the public in the fairness and
moderation of the Courts that it seems to
me that the present case and other cases
of which it is a sample are eminently
suitable for revision. Unfortunately however
as I am in a minority, the question of the
exact amount of punishment does not
arise.
35. While considering the powers of the High Court on the
administrative side, under Article 227 of the Constitution, to
transfer a case the Supreme Court in Ranbir Yadav v. State of
Bihar15, held thus in paras 12 & 13 :
12. Before considering the above
contentions of Mr. Jethmalani, we may
mention that in spite of sufficient
opportunities given, the order of transfer
passed by the High Court was not produced
before us. Needless to say, had it been
produced we would have exactly known the
facts and circumstances which promoted
the High Court to pass that order and
clearly appended the source of power.
However, from the material on record which
we have already detailed, it appears that
the order was passed by the High Court in
the administrative jurisdiction. Under Article
227 of the Constitution of India every High
Court has superintendence over all Courts
and Tribunals throughout the territories in
relation to which it exercises jurisdiction and
its trite that this power of superintendence
entitles the High Court to pass orders for
administrative exigency and expediency. In
the instant case it appear that the High
Court had exercised the power of transfer in
the context of the petition filed by some of
the accused from jail complaining that they
could not be accommodates in the Court
15 (1995) 4 SCC 39227
room as a result of which some of them had
to remain outside. It further appears that the
other grievance raised was that the Court
was so crowded that even clerks of the
lawyers were not being allowed to enter the
Court room to carry the briefs. Such a
situation was obviously created by the trial
of a large number of persons. If in the
context of the above facts, the High Court
exercised its plenary administrative power
to transfer the case to the 5th Court, which
we assume had a bigger and better
arrangement to accommodate the accused,
lawyers and other connected with the trial
no exception can be taken to the same,
particularly by those at whose instance and
for whose benefit the power was exercised.
Mr. Jethmalani, however, contended that
administrative power could not be exercised
at a stage when judicial power was not only
available and operational but was
equally effective and efficacious. According
to Mr. Jethmalani, if the former
was not contained the latter would be
nugatory.
13. We are unable to share the above
view of Mr. Jethmalani. So long as power
can be and is exercised purely for
administrative exigency without impinging
upon an prejudicially affecting the rights or
interests of the parties to any judicial
proceeding we do not find any reason to
hold that administrative powers must yield
place to judicial powers simply because in a
given circumstance they co-exist. On the
contrary, the present case illustrates how
exercise of administrative powers were
more expedient, effective and efficacious. If
the High Court had intended to exercise its
judicial power of transfer invoking Section
407 of the Code it would have necessitated
compliance with all the procedural
formalities thereof, besides providing
adequate opportunity to the parties of a
proper hearing which, resultantly, would
have not only delayed the trial but further
incarceration of some of the accused, it is
obvious, therefore, that by invoking its
power of superintendence, instead of
judicial powers, the High Court not only28
redressed the grievances of the accused
and other connected with the trial but did it
with utmost dispatch.
(Emphasis supplied)
36. Yet again, the Supreme Court in Shalini Shyam Shetty and
Another v. Rajendra Shankar Patil16, delineated the principles
on the exercise of High Court's jurisdiction under Article 227 of the
Constitution of India; formulating the principles it was held thus in
para 49 (e) (i) (l) (m) (n) :
(e) According to the ratio in Waryam
Singh, followed in subsequent cases, the
High Court in exercise of its jurisdiction of
superintendence can interfere in order only
to keep the tribunals and Courts
subordinate to it, “within the bounds of their
authority”.
xxx xxx xxx
(i) The High Court's power of
superintendence under Article 227 cannot
be curtailed by any statute. It has been
declared a part of the basic structure of the
Constitution by the Constitution Bench of
this Court in L. Chandra Kumar vs. Union of
India and therefore abridgement by a
Constitutional amendment is also very
doubtful.
xxx xxx xxx
(l) On a proper appreciation of the wide
and unfettered power of the High Court
under Article 227, it transpires that the main
object of this Article is to keep strict
administrative and judicial control by the
High Court on the administration of justice
within its territory.
(m) The object of superintendence, both
administrative and judicial, is to maintain
efficiency, smooth and orderly functioning
16 (2010) 8 SCC 32929
of the entire machinery of justice in such a
way as it does not bring it into any
disrepute. The power of interference under
this Article is to be kept to the minimum to
ensure that the wheel of justice does not
come to a halt and the fountain of justice
remains pure and unpolluted in order to
maintain public confidence in the
functioning of the tribunals and Courts
subordinate to the High Court.
(n) This reserve and exceptional power
of judicial intervention is not to be exercised
just for grant of relief in individual cases but
should be directed for promotion of public
confidence in the administration of justice in
the larger public interest whereas Article
226 is meant for protection of individual
grievance. Therefore, the power under
Article 227 may be unfettered but its
exercise is subject to high degree of judicial
discipline pointed out above.
xxx xxx xxx
(Emphasis supplied)
37. The Supreme Court has, thus, sealed the issue to observe that in
appropriate cases depending upon the circumstances, the High
Court can exercise administrative powers under Article 227 of the
Constitution of India to transfer the case from one Court to
another Court.
38. Applying the above settled legal position on the issue, I have no
hesitation in observing that such extraordinary circumstances had
arisen in the present cases where the situation warranted that the
Sessions Trials of the respective criminal cases be transferred to
the Court of Sessions Judge because the trial Judge was not
discharging his judicial functions in accordance with the
procedure prescribed under the Cr.P.C. and was acquitting the30
accused persons one after another without writing judgments. If
the High Court would not have intervened, there would have been
judicial chaos leading to travesty of justice. The District Magistrate
would not be able to seek opinion from the Public Prosecutor for
filing appeals because there are no reasons or finding in the
judgment against which appeal can be preferred. The trial Judge
has thrown aside the procedure prescribed under the Cr.P.C in
respect of writing and delivering the judgment, therefore, it was an
appropriate and fit case for exercise of administrative powers by
the High Court to direct transfer of cases from the Court of ASJ to
the Court of SJ.
39. Ex.consequenti, all the writ petitions, sans substratum, deserve to
be and are hereby dismissed. No order as to costs.
40. Copy of this order be circulated amongst all the District &
Sessions Judges of the State for its further circulation amongst all
the Judges of the District Judiciary so that the Judicial Officers do
not commit similar mistake as was committed by the Presiding
ASJ in the present cases. The Judges of subordinate Courts are
advised to deliver the reasoned judgment in all cases by signing
and dating on the date of delivery of judgment. Sd/-
Judge
Prashant Kumar Mishra
Gowri
rendered by a Criminal Court, it is not the operative part written in
the order sheet which would constitute the judgment but it is the
discussion on the merits of the prosecution evidence, the
arguments of both the sides and the findings based on reasons to
conclude the trial in conviction or acquittal, which would constitute
a judgment.
29. If the orders in the order sheet passed in the present cases would
constitute a judgment, then there is nothing to be appealed
against because there is no discussion at all of the prosecution
case and the reasons for recording of such finding which entitles
the accused to be acquitted.
30. In view of the authoritative pronouncements by the Supreme
Court in Jagdev Singh Talwandi (supra) and Yakub Abdul
Razak Memon (supra), the order passed in order sheet in favour
of each of the petitioner acquitting them of the charges by a two
line order would not constitute judgment, therefore, the trial has
not come to an end on the basis of such order. Moreover, the trial
Judge has mentioned in the order sheet that the judgment is
signed and dated in the open Court, however, there is no
judgment available in the record of the Court, therefore, the Judge
himself had construed that there is a separate document which he
has referred as judgment, which is distinct and separate than the
order in the order sheet wherein the acquittal is recorded.
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 2796 of 2008
Smt. Kiran Singh
Versus
The State Of Chhattisgarh,
Coram:
Hon'ble Shri Justice Prashant Kumar Mishra
Dated:18 /02/2016
Citation: 2016 CRLJ2793
Factual matrix :
1. Petitioners would assail the common order dated 07.03.2008
passed by the High Court of Chhattisgarh through its Registrar
General transferring ST No.148/99 (State v. Smt. Kiran Singh
and Others) and ST No.71/95 (sic 71/99) (State v. T.P. Ratre)
along with one civil suit and two civil appeals from the Court of
Shri L.R. Thakur, Second Additional District & Sessions Judge,
Ambikapur (for short “the ASJ”) to the Court of District & Sessions3
Judge, Surguja at Ambikapur (for short “the SJ”) for re-hearing the
cases in accordance with law.
2. WP CR Nos.2796 and 2238 have been preferred by the accused
of ST No.148/99, wherein they were facing trial for committing
offences punishable under Sections 498-A and 304-B of the
Indian Penal Code (for short 'the IPC'), whereas, in WPCR
No.276/2010, the petitioner was facing trial in ST No.71/95 for
commission of offence under Section 306 of the IPC.
3. In ST No.148/99, the trial Judge passed an order in order sheet
on 31.10.2007 declaring that the judgment is written, signed and
dated separately. In ST No.71/95 also similar order was passed
by the ASJ on 28.01.2008 observing that the judgment is typed
separately and is signed & dated.
4. The Presiding Officer has passed such orders in order sheets in
two Sessions Trial, one Civil Suit & two Civil Appeals, therefore,
one Shri Sushil Kumar Chaturvedi, Advocate, Member, State Bar
Council made a complaint to the High Court on 12.02.2008, upon
which the Registrar (Vigilance), High Court of Chhattisgarh issued
a memorandum to the District & Sessions Judge, Ambikapur on
18.02.2008 to enquire into the matter and submit the report. The
District & Sessions Judge submitted a report to the High Court on
the same day i.e. 18.02.2008 substantiating the allegations
against the Presiding Officer. 4
5. It was informed by the District Judge that in ST Nos.148/99 &
71/95, Civil Suit No.1-A/2006, Civil Appeal No.24-A/2006 (old
No.11-A/2005) and Civil Appeal No.17-A/2006, Shri L.R. Thakur,
the Second ASJ has purportedly delivered the judgments, but the
judgments are not available in the file, because they have not
been written. Thereafter, the mater was placed before the Full
Court on 04.03.2008 wherein the decision was taken to transfer
the cases from the Court of Shri L.R. Thakur Second Additional
District and Sessions Judge, Ambikapur to the Court of District
and Session Judge, Surguja at Ambikapur for re-hearing the
cases in accordance with law. Another resolution was passed by
the Full Court on the same day placing the Presiding Officer
under suspension with immediate effect in contemplation of
departmental enquiry in connection with the irregularities
committed by him in discharge of judicial work. The Departmental
Enquiry was duly completed and based on the enquiry report, the
Full Court eventually resolved to impose punishment of
compulsory retirement. By order dated 22.03.2011 the State
Government compulsorily retired the Presiding Officer from
the service on the recommendation of the High Court of
Chhattisgarh.
Submissions :
6. It is argued by Shri Rakesh Pandey & Shri Vaibhav A.
Goverdhan, learned counsel appearing for the petitioners, that the
order passed by the Second Additional Sessions Judge,5
Ambikapur acquitting the petitioners from the charges would
amount to judgment, therefore, the High Court acting through the
Registrar General was not legally competent nor it has jurisdiction
to direct transfer of the Sessions Trial to the Court of District and
Sessions Judge, Sarguja at Ambikapur for re-hearing. Learned
counsel would strenuously urge that the trial having come to an
end upon passing the order which amounts to judgment, nothing
remained for transfer or rehearing. In any event, the order passed
by the High Court on administrative side has the affect of setting
aside the judicial order passed by the ASJ, therefore, the order
impugned is without jurisdiction or authority of law.
7. Per contra, Shri Praveen Das & Shri Ashish Shrivastava, learned
counsel appearing for the High Court of Chhattisgarh and Shri
Shashank Thakur, learned Govt. Advocate appearing for the
State, would submit that the order passed by the ASJ was to be
based on a detailed judgment purportedly passed, dated and
signed separately, however, there being no such separate
judgment, the trial did not come to an end, therefore, in an
extraordinary situation like the present, the High Court has rightly
transferred the cases to the Court of SJ.
8. Learned counsel appearing for the parties have placed reliance
upon the following judgments State of Kerala v. M.K.
Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead) and
Others1
, Janardhan Reddy & Others v. The State of
1 (1996) 1 SCC 435 : AIR 1996 SC 9066
Hyderabad & Others2
, Yakub Abdul Razak Memon v. State of
Maharashtra, through CBI, Bombay3
, Shambhu and others v.
The State4
, Udai Narainv. State of U.P. and Others5
, Surendra
Singh and Others v. State of Uttar Pradesh6
and Radhey
Shyam and Another v. Chhabi Nath and Others7
.
Issues arising :
9. The issue for consideration is what constitutes a judgment in a
criminal trial and when it can be said that the judgment satisfies
the legal requirement so as the same to be a legally binding
document, which terminates the proceedings in the manner
provided in the Code of Criminal Procedure, 1973 (for short “the
Cr.P.C.). The other issue is about the jurisdiction and authority of
the High Court in exercising administrative powers to treat the trial
as pending and thereafter, transferring the same from the Court of
ASJ to the Court of SJ.
10. Since the writ petitions arise out of Sessions Trial needless to say
that the procedure prescribed for trial before a Court of
Sessions provided in Chapter XVIII of the Cr.P.C. was followed by
the ASJ.
11. The word 'judgment' is not defined in the Cr.P.C. After closure of
the evidence of prosecution, as provided under Section 231, the
2 AIR (38) 51 Supreme Court 217
3 (2013) 13 SCC 1
4 AIR (43) 1956 Allahabad 633
5 2000 Cri.L.J. 544
6 AIR (41) 1954 Supreme Court 194
7 2015 AIR SCW 18497
trial Judge is empowered under Section 232 to pass an order of
acquittal, if he thinks that the accused need not produce any
evidence in his defence, however, if the acquittal is not ordered
under Section 232, the Court shall call upon the accused to enter
on his defence and adduce any evidence he may have in support
thereof. After hearing arguments of either side (under Sections
234), the Sessions Court delivers the judgment of acquittal or
conviction under Section 235.
12. Section 235 of the Cr.P.C. is reproduced hereunder for ready
reference :
235. Judgment of acquittal or conviction.--
(1) After hearing arguments and points of law
(if any), the Judge shall give a judgment in the
case.
(2) If the accused is convicted, the Judge shall,
unless he proceeds in accordance with the
provisions of section 360, hear the accused on
the question of sentence, and then pass
sentence on him according to law.
13. Chapter XXVII of the Cr.P.C. from Section 353 to 365 contains
provisions in respect of 'the judgment'. Sections 353, 354, 362,
363, 364 and 365 need consideration for dwelling on the issue,
therefore, they are reproduced as under :
353. Judgment.--
(1) The judgment in every trial in any Criminal
Court of original jurisdiction shall be
pronounced in open Court by the Presiding
officer immediately after the termination of the
trial or at some subsequent time of which notice8
shall be given to the parties or their
pleaders,-
(a) by delivering the whole of the
judgment; or
(b) by reading out the whole of the
judgment; or
(c) by reading out the operative part of
the judgment and explaining the
substance of the judgment in a language
which is understood by the accused or his
pleader.
(2) Where the judgment is delivered under
clause (a) of sub-section (1), the presiding officer
shall cause it to be taken down in short-hand,
sign the transcript and every page thereof as
soon as it is made ready, and write on it the
date of the delivery of the judgment in open
Court.
(3) Where the judgment or the operative part
thereof is read out under clause (b) or clause (c)
of sub-section (1), as the case may be, it shall be
dated and signed by the presiding officer in open
Court, and if it is not written with his own hand,
every page of the judgment shall be signed by
him.
(4) Where the judgment is pronounced in the
manner specified in clause (c) of sub-section (1),
the whole judgment or a copy thereof shall be
immediately made available for the perusal of the
parties or their pleaders free of cost.
(5) If the accused is in custody, he shall be
brought up to hear the judgment pronounced.
(6) If the accused is not in custody, he shall be
required by the Court to attend to hear the
judgment pronounced, except where his
personal attendance during the trial has been
dispensed with and the sentence is one of fine
only or he is acquitted:
Provided that, where there are more
accused than one, and one or more of them do
not attend the Court on the date on which the
judgment is to be pronounced, the presiding9
officer may, in order to avoid undue delay in the
disposal of the case, pronounce the judgment
notwithstanding their absence.
(7) No judgment delivered by any Criminal
Court shall be deemed to be invalid by reason
only of the absence of any party or his pleader
on the day or from the place notified for the
delivery thereof, or of any omission to serve, or
defect in serving, on the parties or their pleaders,
or any of them, the notice of such day and
place.
(8) Nothing in this section shall be construed to
limit in any way the extent of the provisions of
section 465.
(Emphasis supplied)
354. Language and contents of judgment.--
(1) Except as otherwise expressly provided by
this Code, every judgment referred to in section
353,-
(a) shall be written in the language of the
Court;
(b) shall contain the point or points for
determination, the decision thereon and
the reasons for the decision;
(c) shall specify the offence (if any) of
which, and the section of the Indian Penal
Code (45 of 1860) or other law under
which, the accused is convicted and the
punishment to which he is sentenced;
(d) if it be a judgment of acquittal, shall
state the offence of which the accused is
acquitted and direct that he be set at
liberty.
(2) When the conviction is under the Indian
Penal Code (45 of 1860), and it is doubtful under
which of two sections, or under which of two
parts of the same section, of that Code the
offence falls, the Court shall distinctly express
the same, and pass judgment in the alternative.
(3) When the conviction is for an offence
punishable with death or, in the alternative, with10
imprisonment for life or imprisonment for a term
of years, the judgment shall state the reasons for
the sentence awarded, and, in the case of
sentence of death, the special reasons for such
sentence.
(4) When the conviction is for an offence
punishable with imprisonment for a term of one
year or more, but the Court imposes a sentence
of imprisonment for a term of less than three
months, it shall record its reasons for awarding
such sentence, unless the sentence is one of
imprisonment till the rising of the Court or unless
the case was tried summarily under the
provisions of this Code.
(5) When any person is sentenced to death,
the sentence shall direct that he be hanged by
the neck till he is dead.
(6) Every order under section 117 or
sub-section (2) of section 138 and every final
order made under section 125, section 145 or
section 147 shall contain the point or points for
determination, the decision thereon and the
reasons for the decision.
(Emphasis supplied)
362. Court not to alter judgment.--Save as
otherwise provided by this Code or by any other
law for the time being in force, no Court, when it
has signed its judgment or final order disposing
of a case, shall alter or review the same except
to correct a clerical or arithmetical error.
363. Copy of judgment to be given to the
accused and other persons.--
(1) When the accused is sentenced to
imprisonment, a copy of the judgment shall,
immediately after the pronouncement of the
judgment, be given to him free of cost.
(2) On the application of the accused, a
certified copy of the judgment, or when he so
desires, a translation in his own language if
practicable or in the language of the Court, shall
be given to him without delay, and such copy
shall, in every case where the judgment is
appealable by the accused, be given free of cost:11
Provided that where a sentence of death is
passed or confirmed by the High Court, a
certified copy of the judgment shall be
immediately given to the accused free of cost
whether or not he applies for the same.
(3) The provisions of sub-section (2) shall apply
in relation to an order under section 117 as they
apply in relation to a judgment which is
appealable by the accused.
(4) When the accused is sentenced to death
by any Court and an appeal lies from such
judgment as of right, the Court shall inform him
of the period within which, if he wishes to appeal,
his appeal should be preferred.
(5) Save as otherwise provided in subsection
(2), any person affected by a judgment or
order passed by a Criminal Court shall, on an
application made in this behalf and on payment
of the prescribed charges, be given a copy of
such judgment or order of any deposition or
other part of the record:
Provided that the Court may, if it thinks fit
for some special reason, give it to him free of
cost.
(6) The High Court may, by rules, provide for the
grant of copies of any judgment or order of a
Criminal Court to any person who is not affected
by a judgment or order, on payment, by such
person, of such fees, and subject to such
conditions, as the High Court may, by such rules,
provide.
364. Judgment when to be translated.-- The
original judgment shall be filed with the record of
the proceedings and where the original is
recorded in a language different from that of the
Court and the accused so requires, a translation
thereof into the language of the Court shall be
added to such record.
365. Court of Session to send copy of
finding and sentence to District Magistrate.--
In cases tried by the Court of Session or a Chief
Judicial Magistrate, the Court or such Magistrate
as the case may be, shall forward a copy of its or
his finding and sentence (if any) to the District12
Magistrate within whose local jurisdiction the trial
was held.
14. Chapter XXIX of the Cr.P.C. from Sections 372 to 394 contains
provisions in respect of 'appeals'. Section 378 provides for
appeal in case for acquittal and Section 382 provides for petition
of appeal. Sections 378 and 382 are reproduced as under :
378. Appeal in case of acquittal.--
(1) Save as otherwise provided in subsection
(2) and subject to the provisions of subsections
(3) and (5),
(a) the District Magistrate may, in any
case, direct the public prosecutor to
present an appeal to the Court of Session
from an order of acquittal passed by a
Magistrate in respect of a cognizable and
non-bailable offence.
(b) the State Government may, in any
case, direct the Public Prosecutor to
present an appeal to the High Court from
an original or appellate order of an
acquittal passed by any Court other than a
High Court not being an order under
clause (a) or an order of acquittal
passed by the Court of Session in
revision.
(2) If such an order of acquittal is passed in
any case in which the offence has been
investigated by the Delhi Special Police
Establishment constituted under the Delhi
Special Police Establishment Act, 1946 (25 of
1946), or by any other agency empowered to
make investigation into an offence under any
Central Act other than this Code, the Central
Government may, subject to the provisions of
sub-section (3), also direct the Public Prosecutor
to present an appeal,
(a) to the Court of Session, from an
order of acquittal passed by a Magistrate13
in respect of a cognizable and nonbailable
offence;
(b) to the High Court from an original or
appellate order of an acquittal passed by
any Court other than a High Court not
being an order under clause (a) or an
order of acquittal passed by the Court of
Session in revision.
(3) No appeal to the High Court under subsection
(1) or sub-section (2) shall be entertained
except with the leave of the High Court.
(4) If such an order of acquittal is passed in
any case instituted upon complaint and the High
Court, on an application made to it by the
complainant in this behalf, grants special leave to
appeal from the order of acquittal, the
complainant may present such an appeal to the
High Court.
(5) No application under sub-section (4) for the
grant of special leave to appeal from an order of
acquittal shall be entertained by the High Court
after the expiry of six months, where the
complainant is a public servant, and sixty days in
every other case, computed from the date of that
order of acquittal.
(6) If in any case, the application under subsection
(4) for the grant of special leave to
appeal from an order of acquittal is refused, no
appeal from that order of acquittal shall lie under
sub-section (1) or under sub-section (2).
382. Petition of appeal.--Every appeal shall be
made in the form of a petition in writing
presented by the appellant or his pleader, and
every such petition shall (unless the Court to
which it is presented otherwise directs) be
accompanied by a copy of the judgment or order
appealed against.
15. On a dissection of the provisions reproduced above, it would be
discerned that immediately after the termination of trial or at some
subsequent time, the criminal Court of original jurisdiction shall
pronounce judgment in open Court (a) by delivering the whole of14
the judgment; or (b) by reading out the whole of the judgment; or
(c) by reading out the operative of the judgment and explaining
the substance of the judgment in a language which is understood
by the accused or his pleader.
16. In the cases at hand, the judgment was not dictated in open
Court, as it was purportedly written, signed & dated separately,
therefore, clause (a) has no application. The trial Judge appears
to have proceeded under clause (b) or clause (c) by reading out
operative part of the judgment, signing and dating the same, as
provided under sub-section (3) of Section 353. In such a case,
copy of the judgment shall be immediately made available for
perusal of the parties or their pleaders free of cost.
17. The legal requirement of judgment, about its language and
contents are provided under Section 354. According to this
provision, the judgment shall be written in the language of the
Court and shall contain the point or points for determination, the
decision thereon and the reason for the decision. Section
362 of the Cr.P.C. bars alteration or review of the judgment
rendered by criminal Court except to correct a clerical or
arithmetical error.
18. Section 363 of the Cr.P.C. requires the Court to give copy of the
judgment free of cost to the accused where he is sentenced to
imprisonment. Whereas, Section 365 requires that in cases tried
by the Court of Session or a Chief Judicial Magistrate, the Court15
or such Magistrate as the case may be, shall forward a copy of its
or his finding and sentence (if any) to the District Magistrate within
whose local jurisdiction the trial was held.
19. In the present cases, an order of acquittal was passed in the
order sheet, however, there is no judgment recording the reasons
or findings based on appreciation of evidence, which persuaded
the ASJ to acquit the accused persons, therefore, the question
arises whether such order in the order sheets would constitute a
judgment ?
20. To appreciate as to what a judgment of a criminal Court would
mean, requires this Court to refer to the earlier judgments
rendered by the Supreme Court and the High Courts on the
issue.
21. In Shambhu (supra), the Allahabad High Court held thus in
regard to the words 'judgment' and 'order' :
4. The argument sounds plausible;
nevertheless I have no hesitation in holding
it to be untenable. A study of the provisions
of the Code of Criminal Procedure
discloses that the expression of the opinion
of the criminal court on any matter at issue
arrived at after due consideration of the
evidence and of the arguments (if any) falls
into two categories: judgments and orders.
Nonetheless neither of these terms has
been defined either in the Code of Criminal
Procedure or the Penal Code.
There is, however, no controversy as
to what a ‘judgment’ is. As held by the
Federal Court in Hori Ram Singh v. Crown
and S. Kuppuswami Rao v. R., it is used ‘to
indicate the termination of the case by an16
order of conviction or acquittal of the
accused’, and to this, by virtue of Section
367(6) CrPC must be added orders under
Section 118 or Section 123(3), orders
which bear the character of a conviction.
Chapter XXVI of the Code deals exclusively
with judgments and on the basis of its
exhaustive provisions there can be no
difficulty in recognising a criminal court’s
‘judgment’.
22. In Baldeo v. Deo Narain and Others8
, the Allahabad High Court
once again discussed as to how a judgment in criminal cases
should be and held thus in para 14 :
14. … Under Section 367 CrPC every
judgment must contain:
(1) the points for determination;
(2) the decision thereon; and
(3) the reasons for such
decision.
Where the reasons given by the trial court
are such as cannot be supported by the
evidence on record, they are not reasons
for the decision, but reasons against the
decision. To constitute a legal appreciation
of evidence, the judgment should be such
as to indicate that the Court has applied its
mind to it. Every portion of the judgment of
the trial court seems to indicate nonapplication
of mind by the Court to the
evidence on record. The third requirement
laid down in Section 367 CrPC viz. the
reasons for the decision, is an important
ingredient of a judgment. Compliance with
law in this regard should not be merely
formal but substantial and real, for it is this
part of the judgment alone which enables
the higher court to appreciate the
correctness of the decision, the parties to
feel that the Court has fully and impartially
considered their respective cases and the
public to realise that a genuine and sincere
8 AIR 1954 Allahabad 10417
attempt has been made to mete out evenhanded
justice. It is in the way the Court
discharges its duty in this regard that it is
able to instil confidence in its justice and to
inspire that respect and reverence in the
public mind which is its due. Reasons form
the substratum of the decision and their
factual accuracy is a guarantee that the
Court has applied its mind to the evidence
in the case. Where the statement of
reasons turn out to be a mere hollow
pretension of a baseless claim of
application of mind by the Court, the
judgment is robbed of one of its most
essential ingredients and forfeits its claim to
be termed a judgment in the eye of the
law.”
(Emphasis supplied)
23. The High Court of Gujarat in Ratia Mohan v. The State of
Gujarat9
referred to its earlier decision rendered in the matter of
Nathusing Vridhsingh v. Vasantlal R. Shah10 and held thus in
para 9 :
9. In this connection, I was referred to a
decision in Athipalayan, In re, wherein it
was held that the irregularity even in
pronouncing the judgment in open court
and signing and dating the same would
amount to an illegality vitiating the
conviction and sentence passed in the
case. While saying so, it has been
observed thus: (AIR p. 508, para 4)
‘… it is one of the glorious principles
of our criminal jurisprudence that we
do not try or sentence people in
absentia and we do not also convict
and sentence people without
judgments being pronounced in open
court and signed and dated then and
there. It may be different in the
9 AIR (56) 1969 Gujarat 320
10 AIR 1968 Gujarat 21018
continental system of criminal
jurisprudence.’
It was a case in which a sentence was
announced before the judgment, which was
the final decision of the court intimated to
the parties and the world at large by formal
pronouncement of delivery in open court by
the trial Judge and signing and dating it
simultaneously and thereby terminating the
criminal proceedings finally. In Nathusing
Vridhsingh v. Vasantlal R. Shah, the
question arose whether the order of
dismissal of a complaint under Section 203
of the Criminal Procedure Code without
recording any reasons amounts to an
irregularity or illegality curable under
Section 537 of the Criminal Procedure
Code and it was held that the order was
one in contravention of that provision and
such a breach of the provision renders the
order void and ineffective. It was not
curable under Section 537 of the Criminal
Procedure Code. Some observations made
by the Supreme Court in Willie (William)
Slaney v. State of M.P., were quoted to say
that ‘the complainant is entitled to know
why his complaint has been dismissed with
a view to consider an approach to a
revisional Court. Being kept in ignorance of
the reasons clearly prejudices his right to
move the Revisional Court and where he
takes a matter to the Revisional Court
renders his task before that Court difficult,
particularly in view of the limited scope of
the provisions of Sections 438 and 439 of
the Code of Criminal Procedure’. Those
observations may well apply in the present
case particularly when the accused has a
right of appeal against the order of
conviction and sentence passed in the case
and he would obviously be at a
disadvantage to assail the reasons which
were in the mind of the learned Magistrate
and which came out so late as on 6-2-
1968. The appellant-accused had a right to
know the reasons which led the learned
Magistrate to come to that conclusion. It
may well happen that after coming to know
about the accused going in appeal, the
learned Magistrate may try to record a19
proper judgment which otherwise he may
later on do in some other manner. In any
event, the learned Magistrate has clearly
contravened the imperative provisions
contained in Section 264 of the Criminal
Procedure Code by passing the sentence
without recording the judgment in the case
and has that way acted illegally. Such an
illegality cannot be treated as an irregularity
contemplated under Section 537 or an
omission as urged by Mr Nanavati so as to
become curable one. Even if it were to be
treated as such as coming within the ambit
of Section 537, it can easily be said that it
had occasioned failure of justice in the
circumstances of the case. In any view of
the matter, the order is, therefore, liable to
be set aside.”
(Emphasis supplied)
24. Way back in 1930 the Patna High Court in Jahri Lal v. Emperor11
held that pronouncing sentence before completing the judgment,
that is to say, before preparing the essential part of it, such as the
statement of points for determination and the reasons for the
decisions makes these sentences illegal and vitiates
conviction.
25. In State of Punjab and others v. Jagdev Singh Talwandi12, the
Supreme Court considered how the final order/judgment is to be
pronounced. It was held thus in para 30 :
30. We would like to take this opportunity
to point out that serious difficulties arise on
account of the practice increasingly
adopted by the High Courts, of pronouncing
the final order without a reasoned
judgment. It is desirable that the final order
which the High Court intends to pass
11 AIR 1930 Patna 148
12 (1984) 1 SCC 59620
should not be announced until a reasoned
judgment is ready for pronouncement.
Suppose, for example, that a final order
without a reasoned judgment is announced
by the High Court that a house shall be
demolished, or that the custody of a child
shall be handed over to one parent as
against the other, or that a person accused
of a serious charge is acquitted, or that a
statute is unconstitutional or, as in the
instant case, that a detenu be released
from detention. If the object of passing such
orders is to ensure speedy compliance with
them, that object is more often defeated by
the aggrieved party filing a special leave
petition in this Court against the order
passed by the High Court. That places this
Court in a predicament because, without
the benefit of the reasoning of the High
Court, it is difficult for this Court to allow the
bare order to be implemented. The result
inevitably is that the operation of the order
passed by the High Court has to be stayed
pending delivery of the reasoned judgment.
(Emphasis supplied)
26. Considering the above referred judgments, the Supreme Court in
the celebrated case of Yakub Abdul Razak Memon (supra)
concluded that 'it is evident that generally a judgment must be
complete and it must have points for determination, decision
thereon and reasons for such a decision. The basic requirement
for such ingredients appears to be that the superior court
(appellate/revisional) may be able to examine as to whether the
judgment under challenge has been rendered in accordance with
law and particularly, based on evidence on record. So, the
purpose of recording reasons is to facilitate the superior court to
examine the correctness of the judgment of the courts
below.'21
27. The Division Bench of the Patna High Court in Ramautar Thakur
and others v. State of Bihar13 held thus :
18. The Criminal Procedure Code, unlike
the Civil Procedure Code, does not define
'Judgment' A 'judgment' means the
expression of the opinion of the Court
arrived at after, a due consideration of the
evidence and all the arguments. The above
meaning of the word 'Judgment', as is to be
found in Full Bench decisions of the Madras
High Court in Re Chinna Kaliappa Goundan
ILR 29 Mad 126 (Q), of the Bombay High
Court in Emperor v. Nan-dial Chunilal : 48
Bom LR 41: AIR 1946 Bom 276) (FB) (R),
and of the Calcutta High Court in Damu
Senapati v. Shridhar Rajwar ILR 21 Cal 121
(S), was approved by their Lordships
Bhagwati and Imam JJ., in the Supreme
Court case just mentioned.
Their Lordships mentioned that the
observations of the Madras High Court in
its Full Bench decision, just referred to,
were quoted with approval by Sulaiman J.,
in Dr. Hori Ram Singh v. Emperor : AIR
1939 FC 43 (T), in which his Lordships
Sulaiman J., observed that the Criminal
Procedure Code did not define a 'judgment',
but various sections of the Code suggested
what it meant His Lordship then discussed
those sections and concluded that
'judgment' in the Code meant a judgment of
conviction or acquittal.
19. The question, therefore, for our
consideration is, is the order of dismissal
for default a 'judgment' ?
20. In the case of AIR 1928 Rang 238 (G),
it has been held that an order of
dismissal for default is not a 'judgment'
within the meaning of Section 369,
Criminal P. C.
21. In this connection the observation of
Sulaiman J., in 'Dr. Hori Ram Singh (T)',
above mentioned, which was held by the
13 AIR (44) 1957 Patna 33 22
Supreme Court to be sound, may be
reproduced below:
"It will be seen that an order under
Section 435 can with difficulty be
called a 'judgment'. All that a Judge
does at this preliminary stage is
either to send for the records of the
lower Court with a view to examining
them under Section 439 (1), or to
refuse to do so. it is difficult to see
how the latter can possibly be called
a judgment of conviction. When such
an order consists of the one word
'Dismissed' can it necessarily be
taken as a judicial pronouncement
that in the opinion of the Judge the
respondent was rightly convicted
upon the evidence? It seems to me
that all that it means is that the Judge
sees no adequate ground
disclosed in the petition or on the
face of the judgment for proceeding
further."
22. His Lordship Bhagwati J. in the
Supreme court case in delivering his own
'judgment and that of his Lordship Imam J.
observed thus:
"The order dismissing the appeal or
criminal revision summarily or in
limine would no doubt be a final
order of the High Court not subject to
review or revision even by the High
Court itself but would not tantamount
to a judgment replacing that of the
lower Court."
(Emphasis supplied)
28. Thus, by now it is fairly settled that to constitute a judgment
rendered by a Criminal Court, it is not the operative part written in
the order sheet which would constitute the judgment but it is the
discussion on the merits of the prosecution evidence, the
arguments of both the sides and the findings based on reasons to23
conclude the trial in conviction or acquittal, which would constitute
a judgment.
29. If the orders in the order sheet passed in the present cases would
constitute a judgment, then there is nothing to be appealed
against because there is no discussion at all of the prosecution
case and the reasons for recording of such finding which entitles
the accused to be acquitted.
30. In view of the authoritative pronouncements by the Supreme
Court in Jagdev Singh Talwandi (supra) and Yakub Abdul
Razak Memon (supra), the order passed in order sheet in favour
of each of the petitioner acquitting them of the charges by a two
line order would not constitute judgment, therefore, the trial has
not come to an end on the basis of such order. Moreover, the trial
Judge has mentioned in the order sheet that the judgment is
signed and dated in the open Court, however, there is no
judgment available in the record of the Court, therefore, the Judge
himself had construed that there is a separate document which he
has referred as judgment, which is distinct and separate than the
order in the order sheet wherein the acquittal is recorded.
31. The next point for consideration is - if the order passed by the trial
Judge in favour of the petitioners do not constitute a judgment
and the trial is said to be pending, whether the High Court, on its
administrative side can direct transfer of the case from the Court
of ASJ to the Court of SJ ?24
32. Learned counsel appearing for the petitioners would argue that
the Registrar General or for that matter the High Court has no
jurisdiction to pass the impugned order on administrative side
because the impugned order has the affect of reopening of trial
which can only be done by the High Court in appellate jurisdiction
and not on the administrative side.
33. At the first glance, the argument appears to be attractive,
however, in view of the discussion made in the preceding
paragraphs wherein this Court has held that the order passed by
the trial Judge in favour of the petitioners would not constitute a
judgment, hence, there was no occasion for the District
Magistrate to appeal against the said order on the judicial side. If
the trial did not come to an end because there was no judgment
by a criminal Court as required under the Cr.P.C., it was open for
the High Court to exercise its administrative power to transfer the
case so that the Presiding Officer who has committed such
serious error in more than one cases is not provided with an
opportunity again to deal with the cases. It was more so because
the Judge has formed an opinion about the matter without even
discussing the evidence adduced by the prosecution.
34. In regard to the High Court's power of superintendence under
Article 227 of the Constitution of India over all Courts and
Tribunals functioning within its territorial jurisdiction, the
Full Bench of the Bombay High Court in Balkrishna Hari25
Phansalkar v. Emperor14, while considering pari materia
provision under Section 107 of the Government of India Act,
1915, speaking through Beaumont, C.J., has held thus :
Now, what are those powers ? Under S.
107 the High Court has superintendence
over all Courts for the time being subject to
its appellate jurisdiction. It is not disputed
that rights of superintendence include not
only superintendence on administrative
points, but superintendence on the judicial
side too, and that under its power of
superintendence the High Court can correct
any error in a judgment of a Court subject
to its appellate jurisdiction......
xxx xxx xxx
…...Experience shows that irregularities
and illegalities do creep into the
administration of the law, and I think myself
that it would be unfortunate if the High
Court had no power to correct any
irregularity or illegality in the proceedings of
any of these special Courts. We must
therefore deal with this revision application
which has been admitted on its merits.
While delivering the minority judgment, Nanavati, J. one of the
Judges of the Full Bench in Balkrishna Hari Phansalkar (supra)
has succinctly observed about the public confidence in the
fairness and moderation of the Courts. The judgment was
concluded by Nanavati, J. by observing thus :
…....It is perhaps not sufficiently recognised
that public confidence in the impartiality
and moderation of the Courts is of great
value in itself in preserving the public
peace, and indeed on occasion it may be of
more use than battalions of troops or
police. It is necessary in the interests of
14 AIR 1933 Bombay 126
public peace itself that that confidence
should be maintained, and it is therefore
not merely from the point of view of the
accused in the present case, but also from
the wider point of view of preserving the
confidence of the public in the fairness and
moderation of the Courts that it seems to
me that the present case and other cases
of which it is a sample are eminently
suitable for revision. Unfortunately however
as I am in a minority, the question of the
exact amount of punishment does not
arise.
35. While considering the powers of the High Court on the
administrative side, under Article 227 of the Constitution, to
transfer a case the Supreme Court in Ranbir Yadav v. State of
Bihar15, held thus in paras 12 & 13 :
12. Before considering the above
contentions of Mr. Jethmalani, we may
mention that in spite of sufficient
opportunities given, the order of transfer
passed by the High Court was not produced
before us. Needless to say, had it been
produced we would have exactly known the
facts and circumstances which promoted
the High Court to pass that order and
clearly appended the source of power.
However, from the material on record which
we have already detailed, it appears that
the order was passed by the High Court in
the administrative jurisdiction. Under Article
227 of the Constitution of India every High
Court has superintendence over all Courts
and Tribunals throughout the territories in
relation to which it exercises jurisdiction and
its trite that this power of superintendence
entitles the High Court to pass orders for
administrative exigency and expediency. In
the instant case it appear that the High
Court had exercised the power of transfer in
the context of the petition filed by some of
the accused from jail complaining that they
could not be accommodates in the Court
15 (1995) 4 SCC 39227
room as a result of which some of them had
to remain outside. It further appears that the
other grievance raised was that the Court
was so crowded that even clerks of the
lawyers were not being allowed to enter the
Court room to carry the briefs. Such a
situation was obviously created by the trial
of a large number of persons. If in the
context of the above facts, the High Court
exercised its plenary administrative power
to transfer the case to the 5th Court, which
we assume had a bigger and better
arrangement to accommodate the accused,
lawyers and other connected with the trial
no exception can be taken to the same,
particularly by those at whose instance and
for whose benefit the power was exercised.
Mr. Jethmalani, however, contended that
administrative power could not be exercised
at a stage when judicial power was not only
available and operational but was
equally effective and efficacious. According
to Mr. Jethmalani, if the former
was not contained the latter would be
nugatory.
13. We are unable to share the above
view of Mr. Jethmalani. So long as power
can be and is exercised purely for
administrative exigency without impinging
upon an prejudicially affecting the rights or
interests of the parties to any judicial
proceeding we do not find any reason to
hold that administrative powers must yield
place to judicial powers simply because in a
given circumstance they co-exist. On the
contrary, the present case illustrates how
exercise of administrative powers were
more expedient, effective and efficacious. If
the High Court had intended to exercise its
judicial power of transfer invoking Section
407 of the Code it would have necessitated
compliance with all the procedural
formalities thereof, besides providing
adequate opportunity to the parties of a
proper hearing which, resultantly, would
have not only delayed the trial but further
incarceration of some of the accused, it is
obvious, therefore, that by invoking its
power of superintendence, instead of
judicial powers, the High Court not only28
redressed the grievances of the accused
and other connected with the trial but did it
with utmost dispatch.
(Emphasis supplied)
36. Yet again, the Supreme Court in Shalini Shyam Shetty and
Another v. Rajendra Shankar Patil16, delineated the principles
on the exercise of High Court's jurisdiction under Article 227 of the
Constitution of India; formulating the principles it was held thus in
para 49 (e) (i) (l) (m) (n) :
(e) According to the ratio in Waryam
Singh, followed in subsequent cases, the
High Court in exercise of its jurisdiction of
superintendence can interfere in order only
to keep the tribunals and Courts
subordinate to it, “within the bounds of their
authority”.
xxx xxx xxx
(i) The High Court's power of
superintendence under Article 227 cannot
be curtailed by any statute. It has been
declared a part of the basic structure of the
Constitution by the Constitution Bench of
this Court in L. Chandra Kumar vs. Union of
India and therefore abridgement by a
Constitutional amendment is also very
doubtful.
xxx xxx xxx
(l) On a proper appreciation of the wide
and unfettered power of the High Court
under Article 227, it transpires that the main
object of this Article is to keep strict
administrative and judicial control by the
High Court on the administration of justice
within its territory.
(m) The object of superintendence, both
administrative and judicial, is to maintain
efficiency, smooth and orderly functioning
16 (2010) 8 SCC 32929
of the entire machinery of justice in such a
way as it does not bring it into any
disrepute. The power of interference under
this Article is to be kept to the minimum to
ensure that the wheel of justice does not
come to a halt and the fountain of justice
remains pure and unpolluted in order to
maintain public confidence in the
functioning of the tribunals and Courts
subordinate to the High Court.
(n) This reserve and exceptional power
of judicial intervention is not to be exercised
just for grant of relief in individual cases but
should be directed for promotion of public
confidence in the administration of justice in
the larger public interest whereas Article
226 is meant for protection of individual
grievance. Therefore, the power under
Article 227 may be unfettered but its
exercise is subject to high degree of judicial
discipline pointed out above.
xxx xxx xxx
(Emphasis supplied)
37. The Supreme Court has, thus, sealed the issue to observe that in
appropriate cases depending upon the circumstances, the High
Court can exercise administrative powers under Article 227 of the
Constitution of India to transfer the case from one Court to
another Court.
38. Applying the above settled legal position on the issue, I have no
hesitation in observing that such extraordinary circumstances had
arisen in the present cases where the situation warranted that the
Sessions Trials of the respective criminal cases be transferred to
the Court of Sessions Judge because the trial Judge was not
discharging his judicial functions in accordance with the
procedure prescribed under the Cr.P.C. and was acquitting the30
accused persons one after another without writing judgments. If
the High Court would not have intervened, there would have been
judicial chaos leading to travesty of justice. The District Magistrate
would not be able to seek opinion from the Public Prosecutor for
filing appeals because there are no reasons or finding in the
judgment against which appeal can be preferred. The trial Judge
has thrown aside the procedure prescribed under the Cr.P.C in
respect of writing and delivering the judgment, therefore, it was an
appropriate and fit case for exercise of administrative powers by
the High Court to direct transfer of cases from the Court of ASJ to
the Court of SJ.
39. Ex.consequenti, all the writ petitions, sans substratum, deserve to
be and are hereby dismissed. No order as to costs.
40. Copy of this order be circulated amongst all the District &
Sessions Judges of the State for its further circulation amongst all
the Judges of the District Judiciary so that the Judicial Officers do
not commit similar mistake as was committed by the Presiding
ASJ in the present cases. The Judges of subordinate Courts are
advised to deliver the reasoned judgment in all cases by signing
and dating on the date of delivery of judgment. Sd/-
Judge
Prashant Kumar Mishra
Gowri
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