Dave, J. - (1.)THIS is an 'application in revision filed by accused Uttam Chand and Trilok Chand who were convicted by the Special Excise Magistrate (First Class) Jaipur by his order dated 19th May, 1959 under sec. 54 (a) of the Rajasthan Excise Act, 1950. They filed an appeal which was heard by the learned Additional Sessions Judge, Jaipur City and since it was dismissed on 6th July, 1959, they have approached this Court.
(2.)IT is contended by the learned counsel for the petitioners that the judgment pronounced by the learned Additional Sessions Judge, Jaipur City is not a valid judgment in law and, therefore, it is prayed that it should be set aside and that the learned Judge should be directed to re-hear the parties and give a fresh judgment. IT is pointed out by the learned counsel that arguments in the appeal were heard by Shri P. L. Agarwala who was Additional Sessions Judge, Jaipur City on 8. 6. 1959. He was transferred to Jodhpur and, therefore, he handed over charge of his office to Shri Sampat Rai Mathur on 24th June, 1959. After arriving at Jodhpur Shri P. L. Agarwala signed the judgment on 28th June, 1959 and sent it by post to Shri Sampat Rai Mathur who pronounced it on 6th July, 1959. IT has been argued that Shri P. L. Agarwala having handed over charge of his office at Jaipur on 24. 6. 59, he had no jurisdiction left to deliver the judgment, that Shri Sampat Rai Mathur who pronounced the judgment never heard the arguments or applied his mind to the questions of facts and law involved in the case and that he had no authority to pronounce a judgment written and signed by his predecessor.
The learned Deputy Government Advocate on the other hand has tried to support the validity of the judgment and has placed reliance on the case of Gian Singh Munsha Singh vs. Amar Singh Jaimal Singh (1 ). In that case the Magistrate had fixed. 16th October, 1937 as the date for arguments. On that day the accused was absent. The Magistrate wrote out the judgment, convicted the accused and at the end appended a note that since he (Magistrate) was under orders of transfer he was leaving the judgment on file for his successor to pronounce the same when the accused appears in Court. It is clear that in this case the Magistrate had written the judgment signed and dated it before he handed over charge of his office and, therefore, it is clearly distinguishable from the present case.

Learned Deputy Government Advocate has next relied on In re Sankara Pillai (2 ). In that case the Magistrate had written, signed and dated the judgment but he could not pronounce it since some of the accused were absent. He handed it over to his successor who pronounced it on a later date. It appears from the judgment that the accused requested for a denovo trial and the accused were, therefore, not entitled to a denovo trial. This case is also distinguishable from the present one in as much as in the above case the Magistrate had written out the judgment signed and dated it before he handed over the charge of his office.

In the present case, it is clear from the record that after Shri Agarwala heard the arguments on 8. 6. 1959, he fixed 11. 6. 59 for pronouncing the judgment. He could not write out the judgment on that day for certain reasons and he fixed 16. 6. 59 for inspection of certain articles in order to enable him to write out a proper judgment. After inspecting the articles on 16. 6. 59 he fixed 20th June, 1959 for delivering the judgment but on that date also the judgment was not ready and so he again adjourned the case for 24. 6. 1959. His order dated 24. 6. 1939 shows that the judgment was not ready even on that day and so he fixed 3. 7. 1959 for pronouncing the judgment. Before discussing the validity of the judgment it would be proper to observe at this stage that the appellate court ought not to have postponed the case for delivering the judgment in the manner it was done. The learned Judge ought to have written out the judgment and delivered it on the date fixed for it. Mow, it is not in dispute between the parties that on 24. 6. 59, the Additional Sessions Judge handed over the charge to Shri Sampat Rai Mathur. Thus, it is clear that by the time Shri Agarwala gave over the charge, he had not written out the judgment. It further appears that he signed the judgment on 28. 6. 59 and sent it from Jodhpur to Jaipur and thereafter Shri Sampat Rai Mathur delivered it on 6th July, 1959

It may be pointed out that sec. 424 of the Code of Criminal Procedure lays down that the rules contained in Chapter XXVI as to the judgment of a criminal court of original jurisdiction shall apply, so far as may be practicable, to the judgment of any Appellate Court. This makes it quite clear that the Appellate Court is as much required to follow the provisions of Chapter XXVI as a Criminal Court of original jurisdiction. Sec. 367 of the Code of Criminal Procedure provides that every judgment shall be written by the Presiding Officer of the Court and that it shall be dated and signed by the Presiding Officer in open Court at the time of pronouncing it. Sec. 369 then further provides that 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, by the Letters Patent or other instrument constituting such High Court, no Court, when it has signed its judgment shall alter or review the same except to correct a clerical error. In the Code of Civil Procedure there is an express provision under O. 20, R. 2 whereby a Judge is empowered to pronounce a judgment written but not pronounced by his predecessor but there is no corresponding provision in the Code of Criminal Procedure. Shri P. L. Agarwala was not the Presiding Officer of the Court of Additional Sessions Judge at Jaipur on 6th July, 1959 as pointed out above since he had already handed over charge on 26. 4. 1959 and thereafter he had no jurisdiction left to write out a judgment or to sign or to date or pronounce it as a Judge of that Court. Shri Sampat Rai Mathur who pronounced the judgment had not applied his mind to the questions of facts and law involved in the case. The judgment pronounced by him was not a judgment of his mind and, therefore, it was no judgment so far as he was concerned. It is, therefore, apparent that the judgment of the appellate court in the present case is not a valid judgment. This view finds support from a string of authorities which are noted below -

In Baisnab Charan Das vs. Amin Ali (3), it was held that "the Code of Criminal Procedure makes no provision for delivery of judgment written by the Magistrate who heard the case after he had ceased to have jurisdiction in the district. " In that case the learned Judge set aside the conviction and sentence and directed that the accused be re-tried.

In Mohmed Rafique vs. King Emperor (4) it was again held that although sec. 350 of the Cr. P. C. authorizes a Magistrate to try a case on evidence recorded by his predecessor, but he cannot deliver a judgment written out by his predecessor without considering the evidence on the record and without hearing the arguments, if any, on behalf of the accused.

The view taken in the above cases was followed in Jogesh Chandra Roy vs. Surendra Mohan Roy Chaudhuri (5) and a contrary view taken in In re Sankara Pillai{2) by the learned Judges of Madras High Court was referred but not accepted. In Surendra Singh vs. State of Utter Pradesh (6) the view taken in In Re Sankara Pillai{2) does not seem to have been referred, yet the observations made by their Lordships of the Supreme Court lend support to the views expressed in the Calcutta cases referred above.

(3.)IN Surendra Singh vs. State of Utter Pradesh an appeal was heard by two learned Judges of Allahabad High Court (Lucknow Bench) on 11. 12. 52. Thereafter one of the learned Judges dictated the judgment, on behalf of himself and his brother Judge. He signed every page of the judgment including its end but did not date it. He then sent it to the brother Judge but unfortunately, before the judgment could be delivered, the learned Judge who had written out the judgment, expired and the said judgment, was delivered by the other learned Judge on 5. 1. 1953. IN these circumstances it was observed by their Lordships after referring to the relevant provisions of Cr. P. C, as follows : "in our opinion, a judgment within the meaning of these sections is the final decision of the Court intimated' to the parties and to the world at large by formal pronouncement or delivery in open court. It is a judicial act which must be performed in a judicial way. . . . . . . . . It is evident that the decision which is so pronounced or innmated must be a declaration of the mind of the Court as it is at the time of pronouncement. We lay no stress on the mode or manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open court. But however it is done it must be an expression of the mind of the Court at the time of delivery. We say this because that is the first judicial act touching the judgment which the Court performs after the hearing. Everything else up till then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion, Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open Court with the intention of making it the operative decision of the Court. That is what constitutes the judgment. "
Thus, in the light of the above observations it would appear that the judgment which was pronounced on 6. 7. 1959 was neither that of Shri P. L. Agarwala nor that of Shri Sampat Rai Mathur and it was not a valid judgment according to law. The revision application is, therefore, allowed. The judgment dated 28. 6. 1959 is set aside. The file be sent back to the learned Sessions Judge, Jaipur City with directions that the appeal should be re-heard and decided according to law in the light of the observations made above. .

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