P L D 1962 Supreme Court 97 (PLP)

B. Z. KAIKAUS, J.‑

This appeal by special leave has been filed by one Amin Sharif who was convicted by Mr. K. S. M. S. Huq, Magistrate Ist Class, Chittagong, for an offence under section 406 of the Pakistan Penal Code and was sentenced to simple imprisonment for three months and a fine of rupees one thousand. His appeal to the Additional Sessions Judge, Chittagong, as well as his revision to the High Court, Dacca, failed. The prosecution case was that the appellant who was intima tely known to the complainant Safiar Rahman had borrowed from the complainant on the 10th of August 1953, some gold ornaments for use by his wife who was to attend a marriage ceremony. The ornaments actually belonged to Saiyada Khatoon, step‑mother of the complainant, but it was the complainant who secured them from Saiyada Khatoon and handed them over to the appellant who promised to return them within a month. The appellant failed to return the ornaments and a gathering was convened on the 17th of October 1954, to settle the matter. In that gather ing the appellant admitted in writing that he had received the ornaments as alleged ; that he had pawned them as he was in need of money and that he would return them within one a month from the date of the writing. The appellant having still failed to return the ornaments the complainant lodged first information report with Kotwali police station and the police after investiga tion sent up the case for trial under section 406, P. P. C. The appellant admitted that he had borrowed the ornaments and that he had executed the writing referred to above. He contended, however, that Saiyada Khatoon who was the owner of the ornaments was the mother of us deceased wife and that tie 'had after the writing mentioned above returned the ornaments to Saiyada Khatoon. The complainant as well as Saiyada Khatoon who was produced as a witness by the prosecution denied the alleged relationship. The Magistrate who tried the appellant rejected the story of return of ornaments to Saiyada Khatoon and convicted the appellant. The Sessions Judge who heard the appeal agreed with the trial Court and dismissed the appeal. In the petition of revision filed before the High Court it was contended, for the first time, that there had been an order of acquittal passed by Mr. M. Mohsin, a 1st Class Magistrate, who was trying the case at one stage and that this acquittal was a bar to any further proceedings. A certified copy of the judgment signed by Mr. M. Mohsin which was on the record of the case was produced before the High Court. The learned Single Judge of the High Court who heard the revision called for a report from the District Magistrate as to how the appellant had secured a copy of a judgment which apparently had not been delivered. The District Magistrate reported that as the judgment was attached to the record a copy had been issued through oversight by the Copying Department. The learned Single Judge found that no judgment had been pronounced and he refused to give effect to the plea of autre fois acquit. The main ground on which special leave was granted in this case was the question whether there had been an acquittal in law. The facts relating to the judgment which was pleaded as a bar are that this case was at one stage being tried by Mr. M. Mohsin. On the 15th of October 1958, the case was fixed for further cross‑examination of five prosecution witnesses. The prosecution witnesses did not appear and Mr. M. Mohsin passed an order excluding their evidence from consideration on the ground that they had not been fully cross‑examined and closing the prosecution case. On the same day Mr. M. Mohsin ques tioned the appellant as to whether he wanted to lead any defence evidence and having received a reply in the negative he wrote out a judgment with the intention of delivering it, but before it was delivered the complainant put in an application for stay of proceedings on the ground that he wanted to apply for a transfer of the case and Mr. M. Mohsin thereupon stayed the proceed ings without delivering the judgment. It will be convenient to reproduce here the order passed on that date. It runs :‑ "Accused present. P. Ws. 1, 6, 7, 8 and 9 are absent. As they have not appeared for cross‑examination their deposition cannot be taken into consideration. Accused is examined under section 342, Cr. P. C. Defence does not adduce any evidence and declines to adduce any evidence. Perused record. Judg ment is written and is ready to be delivered. Accused Amin Sharif . . . . . At his stage, informant Hazi Shafiur Rahman files a petition praying for staying delivery of the judgment on the ground that he wants to move the Hon'ble High Court for a stay of the proceedings in this Court. The judgment has been written and signed but I refrain from delivering it as the petition under section 526, Cr. P. C., has been filed although it has been filed late. The petition was not filed when I took up writing the judgment and is filed when on the close of the defence the judgment is written and made ready for delivery. Petitioner filing the petition is to execute a bond of Rs. 200 undertaking to move the Hon'ble High Court. In case the petitioner does not make move the entire amount of the bond will be liable to be forfeited. Petitioner is allowed time till 15‑11‑

58. Accused as before. (Sd.) M. Mohsin." Mr. Hamidul Huq Chowdhury who appears for the appellant contended, in the first instance, that judgment had in fact been delivered but the record and the circumstances of the case clearly point to an opposite conclusion. There is no reason to doubt the record of the Magistrate wherein it is stated that he had refrained from delivering judgment. There was a revision petition before the Sessions Judge against the order of the Magistrate striking out the evidence of five witnesses on the ground that they had not been cross‑examined. This petition was decided by the Sessions Judge after hearing the present appellant and there was no plea before him that judgment had been delivered. Before Mr. K. S. M. S. Haq who convicted the appellant no plea had been taken of auter fois acquit and no such plea was taken before the Sessions Judge who heard the appeal against the conviction. The next contention of Mr. Chowdhury and one on which great stress has been laid is that once a judgment has been signed by a Magistrate it cannot be altered and that henceforth the Magistrate ceases to have any further jurisdiction in the case. It does not matter, according to Mr. Chowdhury, as to where and when the judgment is recorded and signed. All that the law requires is that it be signed and once signed it becomes unalterable. He relies for his contention on section 369 of the Criminal Procedure Code according to which no Court when it has signed the judgment can alter or review the same. He does not base any argument on the circumstance that the judgment was recorded during Court hours. There is nothing to show that it was recorded in the Court room and it is not con tended that this fact would be material. The argument of learned counsel is based on the simple fact that the judgment had been signed by the Magistrate. The implication of section 352 of the Code of Criminal Procedure which declares Courts to be open Courts would be that all acts in relation to criminal trials and enquiries are to be performed in Court, but so far as the most important of these acts is concerned, that is, the determination, the Code makes it clear to at the act is to be performed in open Court and with a great deal of solemnity. Section 366 which provides for the mode of delivering judgment runs :‑ "(1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced, or the substance of such judgment shall be explained,‑ (a) in open Court either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders, and (b) in the language of the Court, or in some other language which the accused or his pleader understands Provided that the whole judgment shall be read out by the presiding Judge, if he is requested so to do either by the prosecution or the defence. (2) The accused shall, if in custody, be brought up, or, if not in custody, be required by the Court to attend, to hear judgment delivered, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted, in either of which cases it may be delivered in the presence of his pleader. (3) 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. (4) Nothing in this section shall be construed to limit in any way the extent of the provisions of section 537." It will be observed that the judgment has to be pronounced in open Court after notice to the parties. It has to be delivered in the language of the Court or in some language which the accused understands and if any of the parties so requires the whole of the judgment has to be read by the Presiding Officer. The judgment is to be delivered in the presence of the accused except in some circumstances mentioned in the section. According to subsection (3) if a judgment is delivered in the absence of any party to the proceedings it does not become invalid. This does suggest that if the judgment is not delivered at all it would not be valid, for otherwise this subsection would be wholly redundant. So far as the meaning of delivering judgment is concerned it will be observed that the marginal note to the subsection is "Mode of delivering judgment", and a perusal of section makes it clear that delivering judgment only means pronouncing a judgment. The provision as to signing the judgment is contained in subsection (1) of the next section and it runs :‑ "367 (1) Every such judgment shall, except as otherwise ex pressly provided by this Code, be written by the presiding officer of the Court (or from the dictation of such presiding officer) in the language of the Court, or in English; and shall contain the point or points for determination, the decision thereon and the reasons for the decision ; and shall be dated and signed by the presiding officer in open Court at the time of pronouncing it and where it is not written by the presiding officer with his own hand, every page of such judgment shall be signed by him." It will be observed that according to this subsection the judgment is to be signed in open Court at the time it is pronounced. Section 369 on which reliance is placed by learned counsel for the appellant runs :‑ "Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court established by Royal Charter, by the Letters Patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error." As already stated on the strength of this section it is con tended by learned counsel for the appellant that the signing of the judgment makes a judgment unalterable. But the judgment which is referred to in this section means a judgment which has been delivered in accordance with section

366. Sections 366, 367 and 369 of the Criminal Procedure Code are to be read together. At the same time, the signing which is referred to in section 369 is the signing in open Court at the time of the pronouncement of the judgment and pot a signing at home. In fact, it can be argued that the signing at home is not a signing in accordance with law and is therefore of no effect. If the contention of learned counsel for the appellant were accepted a judgment signed long before the date of hearing fixed in a trial would conclude the trial and any stay order issued by a superior Court, after the signing would be wholly inoperative. We do not think this result was intended. We would, therefore, hold that the simple writing and signing the judgment was wholly ineffective and did not operate as a bars to further proceedings. A contention was also raised before us that the matter had been compromised and therefore there remained only a civil liability, for, according to the document that was executed by the appellant, if the ornaments were not returned within a month of the execution of the document the complainant was entitled to take proceedings in Court. The offence, however, had been committed in this case before the document was executed, that is, when the appellant pawned the ornaments. When the appellant pawned the ornaments he, to use the language of section 405, P. P. C., which defines criminal breach of trust, " dishonestly misappropriated or converted to his own use" the ornaments, or dishonestly used the ornaments in violation of his implied agree ment that he would not In any way dispose of such property. A compromise subsequent to the commission of the offence would be of no effect, for the offence under section 406, P. P. C., is notl0 compoundable. This appeal is dismissed. K. B. A. Appeal dismissed