M. B. SHARMA, J. - (1.) IN the Misc. Petition the order of the learned Assistant Collector and Executive Magistrate, Chirava dated March 9, 1987 has been challenged. Under the said order the learned Executive Magistrate held that his predecessor has not pronounced the order and as such it does not amount to judgment.
(2.) IT appears that a case under Section 145 Cr. P. C. was pending in the Court of Assistant Collector-cum-Executive Magistrate, Chirava. The presiding officer had received his transfer order on February 18, 1987 though in the impugned order the date of transfer order has been stated as February 10, 1987. The final arguments were heard in the case on February 12, 1987 and the case was adjourned to February 21, 1987. But on February 18, 1987 it appears that the Presiding Officer was to be relieved and, therefore, he drew an order-sheet that the judgment has been written, signed and has been sealed in an envelop. IT was also mentioned that the successor will pronounce the order on February 21,1987. On February 21, 1987 though the Presiding Officer was present but he did not pronounce the judgment and on that day he was relieved and his successor took over the charge. The judgment could not be pronounced and the successor presiding officer fixed February 27, 1987 as the date. The question arose as to whether the judgment of the predecessor was a judgment in accordance with the law and whether the successor was bound to pronounce it. The petitioner's submission was that the judgment can be pronounced because it has been written and signed, whereas the case of the non-petitioner was that the successor has no right to pronounce the judgment. The learned Magistrate in the impugned order held that the judgment of his successor had not been pronounced and, therefore, it does come in the definition of judgment. The learned counsel for the petitioner could not draw my attention to any of the provisions of the Cr. P. C. enabling a successor to pronounce a judgment or order written by his predecessor-in-office. Before the learned Magistrate it appears that the attention was drawn to the provisions of Section 353 Cr. P. C. as well as to Section 35 (1) Cr. P. C. and the attention of this Court has also drawn to the same provisions. Neither of those provisions are applicable. Section 35 (1) Cr. P. C. provides that subject to the other provisions of this Code the powers and duties of a Judge or Magistrate may be exercised or performed by his successor-in-office. It does not say that a judgment or order written by the predecessor-in-office can be pronounced by the successor-in-office. Similarly, Section 353 Cr. P. C. is also not applicable. Rather Section 353 Cr. P. C. is against the view canvassed by the learned counsel for the petitioner. Under Subsection (1) the judgment shall be pronounced by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders by delivering the whole of the judgment or by reading out the whole of the judgment or by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is under stood by the accused or his pleader. Sub-section (3) provides that 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. The successor-in-office can hardly comply with this provision namely, Sub-section (3) of Section 353 Cr. P. C. The learned Executive Magistrate has referred to a case of this Court-Uttam Chand Vs. State of Rajasthan (1 ). In that case one P. L. Agarawala was the presiding officer in the Court of Additional Sessions Judge, Jaipur City and he had heard the arguments in a criminal appeal on June 8, 1959. He was transferred to Jodhpur and handed over charge of his office to Shri Sampat Rai Mathur on June 24, 1959. After arriving at Jodhpur, Shri P. L. Agarwala signed the judgment on June 28, 1959 and sent it by post to Shri Sampat Rai Mathur who pronounced it on July 6. 1959. So a question arose as to whether the judgment so pronounced is a judgment in the eye of law. Though, the court in that case was dealing with an appellate judgment, but referring to section 287 of the new Code it was held that compliance of the rule contained in Chapter XXVI (now XXVII) was necessary. The court said : "it may be pointed out that s. 424 of the Cr. P. C. lays down that the rules contained in Chap. XXVI as to the judgments 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 Chap. XXVI as a Criminal Court of original jurisdiction. Section 367 of the Cr. P. C. provides that every judgments 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. section 369 then further provides that save as other wise 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. " The court further said that there is an express provision under order 20 Rule 2 Cr. P. C. 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. It was thus, held that Shri P. N. Agrawal was not the Presiding Officer of the Court of Additional Sessions Judge at Jaipur on the date of pronouncement of judgment by his successor, the judgment was not a judgment in the eye of law. As already stated earlier under Chapter XXVII the rules are contained in respect of a judgment of the Criminal Court of original jurisdiction and under Sub-section (3) of Section 353 of the New Code the judgment is to be dated and signed by the Presiding Officer in open Court. It is not possible for the successor to sign the judgment of his predecessor in open court and pronounce it. Therefore, I am of the opinion, that there is no provision under the Criminal Procedure Code enabling a successor-in-office to pronounce the judgment which was written and signed by his predecessor. There is no force in this Misc. Petition and is hereby dismissed. . ;