Report No. 41
Chapter XXVI
Judgment
26.1. Section 366(1.-Modes of pronouncing judgment.-
Section 366(1) deals with the modes of pronouncing a judgment, though the marginal note to the section speaks of "delivering" a judgment. Under section 366(1) a judgment may be pronounced or its substance explained. Here "pronounced" evidently means the reading out of the whole judgment. The proviso to section 366(1) states that, if the prosecution or the defence so desire, the whole judgment shall be read out. Further, under section 367(1), it is permissible to dictate a judgment in court. Thus, a reading of sections 366 and 367 reveals three modes of pronouncing a judgmen.-
(a) delivering a judgment by dictation in open court;
(b) reading out the whole of a judgment already written; and
(c) explaining the substance of the judgment already written.
We feel that all the three modes should be brought under one section. Further, the provisions of section 367(1) regarding the dating and signing of judgments should also be included in this section.
26.2. Dating and signing of judgment.-
Section 367(1) provides that the judgment shall be dated and signed at the time of pronouncing it. However, it is quite obvious that unless the judgment is a very short one, this requirement cannot be satisfied where the judgment is pronounced by dictating in court. Transcribing a dictated judgment will take time. In such cases the judgment can be signed and dated only when the transcript is read.-which may be some hours or even days after the judgment is pronounced. Therefore, besides r.-arranging the matter contained in section 366(1) and 367(1) as we have recommended above, the position regarding the dating and signing of judgments dictated in court has also to be stated more clearly.
26.3. Operative part should be read out.-
We also propose to add a provision to the effect that when the judgment is pronounced by explaining the substance of it, the operative part of the judgment should be read out.
26.4. Reference to language in section 366(1)(b) unnecessary.-
The main paragraph of section 366(1) provides that the judgment shall be pronounced or its substance explained. Clause (a) says that this should take place immediately on the termination of the trial or on a later notified date; and under clause (b) it should be in the language of the court or in some language the accused or his pleader understands. Clause (a) obviously applies to both modes of pronouncing the judgment, but clause (b) evidently has reference only to explaining the substance of the judgment, as otherwise it would mean that the judgment should, be written or read out in some language the accused understands. We think, that the reference to a language the accused or his pleader understands may be safely omitted, as the court, when "explaining" the substance of the judgment will ensure that the accused understands what is being explained.
26.5. Reading out whole judgment need to be compulsory.-
The proviso to section 366(1) requires the court to read out the whole judgment if so requested by either party. We think that it would suffice if the judgment or a copy thereof is made available for the perusal of either party. We also propose to make it clear, that this should be confined to cases where the judgment is pronounced by explaining its substance. Obviously, when the whole judgment is read out or dictated, there is no point in requiring a copy for perusal.
26.6. Section 366(2).-
Section 366(2) provides that the judgment shall be pronounced in the presence of the accused, except in certain specified instances where the presence of his pleader is sufficient. This requirement can give rise to difficulties in cases where there are more accused than one and some of them, out on bail, fail to appear at the time of judgment. In such cases, the pronouncement or the judgment will have to be postponed even against the accused present in court, till the absconding accused are apprehended. This, apart from wasting the time of the court, will also cause needless harassment to the other accused.
We would, therefore, recommend that a power be given to the court to pronounce judgment in such instances, even if one or more of the several accused in the case are not present to hear it, making it clear that the power is to be used only to prevent undue delay. True, even under the present provisions such a pronouncement will not be an illegality due to the saving provision in section 366(3); but it would be better to give the court such power in clear terms than to leave the procedure as an irregularity curable under another section. A consequential amendment1 to section 383 will be necessary in order to provide that in such cases the Magistrate shall issue a warrant for the arrest of the accused who is absent.
Two other changes also appear necessary in su.-section (2). It provides that the accused need not be present to hear the judgment if his personal attendance during trial had been already dispensed with and the sentence to be passed is only one of fine or if he is acquitted, in both of which cases the presence of the accused's pleader is sufficient. We do not think it necessary to insist on the presence of even the pleader in such cases. Secondly, the su.-section, as it stands, deals with the cases of the accused in custody as well as the accused on bail. It would be better, in the interests of clarity, to provide for these two cases separately.
1. See para. 28.5 below.
26.7. Sections 366(3) and 366(4).- No changes are needed in sections 366(3) and 366(4).
26.8. Amendment of section 366 recommended.-
Section 366 may, in the light of the above discussion, be amended to read as follows.-
"366. Judgmen.- (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 notice 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.
(2) Where the judgment is delivered under clause (a) of su.-section (1), the presiding officer shall cause it to be taken down in shor.-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 court.
(3) Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of su.-section (1), 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 su.-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 some of them do not attend the court on the date on which the judgment is to be pronounced, the presiding 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 537."
26.9. Section 367.-
We have already considered1 that part of section 367(1) which deals with the dating and signing of the judgment. The remaining part deals with the contents of the judgment. The same topic is also dealt with in sub¬sections (2) and (4). We recommend that all these provisions be brought together under one su.-section, so that one can know at a glance what the contents of a judgment should be.
No changes are needed in su.-section (3) of section 367. Su.-section (5), is relevant only to trials by jury. As this type of trial is proposed to be abolished, su.-section (5) of section 367 may be omitted.
1. See para. 26.2 above.
26.10. Section 367 and reasons for sentence in capital cases.-
A recommendation relevant to section 367 was made in the Law Commission's Report1 on Capital Punishment, while considering the question whether a provision requiring the court to state its reasons for awarding the sentence of death or imprisonment for life in a capital case, should be inserted. The conclusion was thus expresse.-
"The replies to question 8 show a considerable body of opinion which is in favour of a provision requiring the court to state its reasons for imposing the punishment either of death or of imprisonment for life. Further, this would be a good safeguard to ensure that the lower courts examine the case a's elaborately from the point of view of sentence as from the point of view of guilt. It would also provide good material at the time when a recommendation for mercy is to be made by the court, or a petition for mercy is considered.
Again, it would increase the confidence of the people, in the courts, by showing that the discretion is judicially exercised. It would also facilitate the task of the High Court in appeal or in proceedings for confirmation in respect of the sentence (where the sentence awarded is that of death), or in proceedings in revision for enhancement of the sentence (where the sentence awarded is one of imprisonment for life).
Thus, there appears to be sufficient justification for a provision requiring the court to state its reasons, whenever it awards either of the two sentences in a capital case. We recommend the insertion of such a provision in the Code of Criminal Procedure, 1898."
We are also of the same view, and recommend that the section be amended accordingly. In this connection, it may be noted that there are certain offences for which the Penal Code prescribes the punishment as death or in the alternative, life imprisonment or imprisonment for a term of years. Therefore, the amendment recommended above should cover these cases also.
1. 35th Report (Capital Punishment), para. 82.-822.
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