P L D 1964 Dacca 56 (PLP)

(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 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." "367. (1) Every such judgment shall, except as otherwise expressly 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 shah 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. (2) It shall specify the offence (if any) of which, and the section of the Pakistan Penal Code or other law under which, the accused is convicted, and punishment to which he is sentenced. (3) When the conviction is under the Pakistan Penal Code 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. (4) If it be a judgment of acquittal, it shall state the offence of which the accused is acquitted and direct that he be set at liberty. (5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed Provided that, in trials by jury, the Court need not write a judgment, but the Court of Session shall record the heads of the charge to the jury. (6) For the purposes of this section and order under section 118 or section 123, subsection (3), shall be deemed to be a judgment."

8. At the close of the argument by the lawyers of both sides, the learned Additional Sessions Judge addressed the assessors on the 30th of March 1961, and recorded their opinion. The assessors being unanimous in their opinion, the learned Judge then and there recorded the following order, acquitting 14 of the accused persons and sentencing the appellant Abdus Sattar Howladar and, Kasem Ali: - "Accepting and agreeing with the unanimous opinion of the assessors I convict the two accused Kasem Ali and Abdul Sattar Howladar under section 304, Part II, P. P. C. and sentence them both to R. 1. for 6 years (six years) each and I acquit all the accused of their remaining charge or charges, as the case may

9. Some four days after sentencing the accused Abdus Sattar Howladar and Kasem Ali a judgment was written and signed, supplying reasons in support of the sentence, observing in the concluding portion thereof as follows "I convicted two accused Kasem and Sattar under section 304, Part 11/34, P. P. C. and sentenced them to suffer R. I. for 6 (six) years each by my order, dated 30-3-61." A glaring discrepancy is noticeable between the order by which the accused Abdus Sattar and Kasem Ali were convicted and sentenced on the 30th March 1961, and the concluding portion of the judgment dated the 4th April 1961. The assessors were of the opinion that these two accused were guilty under section 304, Part 11 of the Penal Code and the learned Judge, then and there, agreeing with and accepting that opinion, convicted and sentenced them under section 304, Part II of the Pakistan Penal Code. The judgment, however, gives reasons in support of a conviction under section 304, Part II read with section 34 of the Pakistan Penal Code. In view of this it may well be argued that the decision to convict was that of the assessors, and not of the Judge who made an attempt subsequently to support that decision by writing out of a judgment which failed strictly to conform to that decision. The very order convicting and sentencing these two accused bears the complexion of a trial by Jury, and is not in conformity with the provisions of section 309 of the Code of Criminal Procedure.

10. Section 309 provides that after ascertaining the opinion of the assessors, by which the Judge shall not be bound, he shall, give judgment, and that if his judgment be one of conviction he shall pass sentence on him according to law. The sentence therefore, cannot precede the judgment.

11. Apart from section 309, sections 366 and 367 of the Code of Criminal Procedure prescribe the mode how and when the judgment shall be pronounced, and what it shall contain. Pronouncing judgments in the mode prescribed by the Code necessitates a careful and systematic consideration of the materials appearing in the evidence and the points raised in the arguments advanced by the parties, and the pressure of these considerations on the mind of the Judge ensures a correct decision on merits. By a judgment subsequently written, the Judge would be more likely to be led by the consideration that the sentence earlier passed was anyhow to be supported. He will be powerless to alter or modify the same, however, honestly he may think that the `t sentence already passed was wrong. Besides, if a sentence were allowed to be passed in the absence of a judgment, that would result in placing obstacles in the way of exercise of the right of the party feeling aggrieved by the sentence to seek remedy in a higher Court. We have given the matter our serious considera tion, and we cannot persuade ourselves to accept the view that the provisions of sections 309, 366 and 367 of the Code can be permitted to be violated without impairing the efficiency of the machinery provided for the administration of criminal justice.

12. The learned Additional Sessions Judge was bound by the provisions of those sections, as all the Courts established by the Code are. He cannot presume to lay down a procedure for himself and try cases according to his own notions of a judicial proceeding. A violation of the procedure laid down with such meticulous care in the sections of me Code above referred to, can not, in our opinion, be lightly passed over as a mere irregularity, as doing so would amount to according approval to a diversion of the course of justice through unauthorised channels.

13. The view we are taking in the matter finds support from a Full Bench decision of the Allahabad High Court in the case of Queen Empress v. Hargobinda Singh and others (I L R 14 All. 242). We propose to quote a few paragraphs of that decision hereunder "There can be no pretence for suggesting that the judgment required to be delivered and pronounced under sections 366 and 367, whether it be a judgment of conviction or a judgment of acquittal, need not contain the particulars required by section 367 or need not be pronounced, hat is, read out in open Court, and need not be dated and signed by the presiding officer at the time of pronouncing it, Further, there can be no pretence for suggesting that Sessions Judges, who are appointed and paid to administer the law in accordance with the law are not bound to obey the specific mandates of the Legislature, and may act in violation of the provisions of the Code of Criminal Procedure, 1882. Inasmuch as the sentence in the case of a conviction, and the direction to set the accused at liberty in the case of an acquittal, can only follow on the decision and cannot precede it and inasmuch as ,the decision must b;; contained in the written judgment, and there only, it necessarily follows that when, in cases, like the present, to which section 367 applies, there is no written judgment when the sentence is passed, the sentence is illegal. The requirements of sections 366 and 367 are not mere matters of form. The provisions of those sections are based upon good and substantial grounds of public policy, and whether they are or not, Sessions Judges must obey them and not be a law to themselves. "Any Judge at the conclusion of the evidence in a case, some of which may not be quite distinct in his mind owing to the length of the trial, might pass sentence on a prisoner and find it impossible honestly afterwards to put on paper good reasons for having convicted him, or, on the other hand, might direct that the accused be set at liberty and find it impossible after wards honestly to put on paper good reasons for the acquittal. The law wisely requires that the reasons for the decision shall accompany the decision, and shall not be left to be subsequently inserted or recorded. It is as much to the interest of the public that a guilty man should not be acquitted as it is that innocent man should not be convicted."

14. It is true that the decisions cited by the learned Deputy Legal Remembrancer support the view that such a contravention of the procedure as has been made in the present case is curable by section 537 of the Code. The case reported in A I R 1942 Lah. 100, is a Single Bench decision. It was a revision case preferred by convicted accused persons from an appellate judgment which upheld the conviction and sentence passed by a Magistrate. The learned Single Judge noticed that it was conceded before the Court of appeal by the prisoners that the contravention alleged was curable by the application of the provisions of section 537 of the Code of Criminal Procedure. The learned Single Judge, no doubt, referred to the Full Bench decision of the Allahabad High Court, referred to above, but unfortunately failed to notice the most material paragraph in that decision which maintained that the judgment passed after pronouncement of sentence was clearly illegal. I L R 23 Cal. 502 is a Division Bench decision of the Calcutta High Court. The learned Judges doubted if the Full Bench of the Allahabad High Court at all considered the provisions of section 537 of the Code of Criminal Procedure in coming to the conclusion that the sentence passed prior to delivery of judgment was illegal. The learned Judges of the Calcutta High Court then took note of the fact that the Full Bench of the Allahabad High Court did not direct a retrial but after consider ing various other illegalities, committed by the trial Judge in the course of the trial, allowed the appeal and acquitted the accused on merits. The case before the Calcutta High Court was a revision case at the instance of the accused, and the learned Judges observed that the Court of appeal below having followed the course adopted by the Allahabad High Court by considering the entire evidence and upholding the conviction they were not, in the circumstances of the case, able to say that there had been a failure of justice. In that view of the matter the Rule was discharged. It may, however, be noticed here that the appellants before the Full Bench of the Allahabad High Court, as will appear from their judgment, set their faces to a retrial and asserted that a new trial would "seriously damnify the appellants". The learned Judges were not in doubt that the sentence could not be allowed to stand. In view, however, of the other factors they did not think it necessary to direct a retrial, and so they acquitted the accused. I L R 45 Mad. 913 is, of course a Full Bench decision of the three Judges of the Madras High Court. That case was also a revision case and was preferred by Public Prosecutor against an order of acquittal. Schwabe, C. J., who delivered the leading iudgment in that case, after noticing the contravention of sections 366 and 367 observed as follows :- "Now, the judgment that was delivered in Court complied with section 367 (4), because it stated, by a reference back to the question to the assessors, the offence and directed that the accused be set at liberty. Whether that is a sufficient compli ance with section 366 or 367 is a difficult question. There is a dictum in Queen-Empress v. Hargobinda Singh that it is not. The correctness of that dictum has certainly been questioned in Tilak Chandra Sarkar v. Baisagomoff: I do not think it is necessary in this case to express any view on that matter ; because, under section 537 of the Code of Criminal Procedure, no finding of a Court is to be reversed on account of any error, omission or irregularity in various matters including a judgment. In my view, assuming that the method adopted by the learned Judge in that case is not a full compliance with sections 366 and 367, it is a mere irregularity and in my judgment, it is not open to us to set aside the acquittal on that ground alone."

15. The learned Chief Justice then proceeded to examine whether the revision petition which was at the instance of a private prosecutor, could be entertained against an order of acquittal on the sole ground of non-compliance of the provisions of sections 366 and 367 of the Code of Criminal Procedure and answered the question in the negative. Oldfield, J., had nothing to add. Coutts Trotter, J., however, preferred to add the following :- "I agree and only wish to add this, that I am satisfied that this is a case in which we have a discretion and we need not interfere unless we choose, and speaking for myself. I cannot agree to the course suggested, namely, that people who have been tried for their lives for a month and acquitted should be made to undergo a retrial at the instance of a private prosecutor when the Government would not come forward and urge such a case in the Court of appeal."

16. It appears to us that although the Full Bench decision reported in I L R 14 All. 242, was noticed in all the three cases cited by the learned Deputy Legal Remembrancer, in none of these due and proper consideration was given to the reasons that led the Allahabad High Court to hold that a sentence passed prior to delivery of judgment was illegal. The view of the learned Chief Justice of the Madras High Court that section 537 of the Code of Criminal Procedure cures certain "errors, omissions, irregularities in various matters, including a judgment" cannot be disputed. But the point is that the irregularity complained of, if it be an irregularity, is not in the judgment but in the sentence which was passed when the judgment was not at all in existence.

17. For the view that we have taken of the procedure followed by the learned Additional Sessions Judge in passing sentence prior to delivery of judgment, the order of the learned Judge passing sentence upon these two accused persons on the 30th March 1961, cannot be allowed to stand.

18. In the result the appeal is allowed, suo motu Rule is made absolute. The conviction and sentence of Abdus Sattar Howladar and Kasem Ali are set aside, and the case is sent back on remand for a fresh trial according to law, by any other Judge. Pending the new trial the accused will remain in custody. SATTAR, J.-I agree with my learned brother. I feel that in view of the importance of the question I should add a few words of my own. If sections 366 and 367 of the Code of Criminal Procedure are read together it follows that the judgment is delivered only when it is written, signed, dated and pronounced in open Court. Section 366 provides as to when the judgment is to be delivered and subsection (2) of section 367 lays down as to what should be the contents of the judgment and that it should be signed and dated at the time of pronouncement. In sub section (3) of section 367 it is said that the judgment shall specify the offence (if any) of which, and the section of the Penal Code or other law under which, the accused is convicted, and the punishment to which he is sentenced. It is, therefore, evident that the announcement made by the learned Judge on the 30th of March 1961, as to the conviction and sentences of the two accused persons cannot by itself be considered to be the delivery of judgment contemplated by section 366 and what he wrote out later, as the reasons only in support of it. The Legislature made these provisions not merely as a matter of form but with a view to guard against certain undesirable results that might follow in cases of departure. It is not unlikely that a Court which is to decide questions of fact and law, upon the decision of which the result of a trial depends, may find itself in difficulty while giving reasons in support of the result announced earlier and thus be forced to support it somehow. It is also possible that the reasons on the face of them may not betray any such infirmity. It is in this view of the matter that I am unable to agree with those decisions wherein it has been said that the omission to write out the judgment before pronouncing the sentence is not an illegality and it cannot be said to have affected the judgment unless it has occasioned failure of justice. s. B./g. B. A. Appeal allowed.