Report No. 41
26.11. Pronouncement of judgment by successor.-
We note that there is no provision in the Code as to pronouncement of a judgment written by a predecessor. We considered the question whether any provision on the subject should be inserted. In our view, it is not proper that in criminal cases, a judge should pronounce a judgment written by his predecessor. He can, no doubt, make use of the material contained in the (draft) judgment prepared by his predecessor. But in that case he is himself responsible for the contents of the judgment.
26.12. Section 367(6).-
Section 367(6) provides that for the purposes of this section, an order under section 118 or section 123(3) shall be deemed to be a judgment. Its main object seems to be to ensure that, in any such order reasons are given separately for the order as to each person proceeded against. It is, in our view, sufficient to provides in section 118 itself that reasons should be recorded for an order under that section. No such provision is necessary for orders under section 123. These orders are passed by Sessions Judges, who may be expected to give reasons without a statutory provision.
26.13. Revision of section 367 recommended.-
Revised on the lines suggested above, section 367 will read as follows.-
"367. Language and contents of judgment.- (1) Except as otherwise expressly provided by this Code, every such judgmen.-
(a) shall be written in the language of the Court or in English;
(b) shall contain the point or points for determination, the decision thereon and the reasons for the decision;
(c) shall specify the offence (if any) of which, and the section of the Indian Penal Code or other law under which, the accused is convicted and the punishment to which he is sentenced; and
(d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty.
(2) When the conviction is under the Indian 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.
(3) When the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded.
26.14. Section 368.- No changes are needed in section 368.
26.15. Section 36.-applicability to High Courts.-
Section 369, as enacted in 1898, provided that "no Court, other than a High Court, when it has signed its judgment, shall alter or review the same, except as provided in sections 395 and 484 or to correct a clerical error." Despite the express exclusion of the High Courts from the operation of this provision, they held1 that they had no implied power to alter or review their own judgments whether under section 369 or under section 439 or otherwise.
It was accordingly proposed in 1921 that the words "other than a High Court" should be omitted to make it clear that section 369 conferred no such power on the High Courts. The Joint Committee which examined the Bill noticed that one or two other sections in the Code, besides sections 395 and 484, and clause 26 of the Letters Patent of the High Courts, empowered the High Courts to revise their judgments. They accordingly r.-drafted the amendment to read as follows.-
"In section 369 of the said Code, for the words 'No Court other than a High Court', the words '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' shall be substituted; and the words and figures 'as provided in sections 395 and 484' shall be omitted."
Subsequent adaptation in 1950 and formal amendment in 1955 have given the section its present form.
1. Queen Empress v. Durga Charan, 1885 ILR 7 All 672; Queen Empress v. C.P. Fox, 1885 ILR 10 Bom 176 (FB); Gibbons (in the matter of), 1886 ILR 14 Cal 42 (FB).
26.16. Amendment recommended.-
It is, however, clear that the Letters Patent or other instrument constituting a High Court are also laws for the time being in force and accordingly the words "or in the case of a High Court established by the Letters Patent or other instrument constituting such High Court" are redundant and somewhat confusing. In fact, the reference to Letters Patent of the older High Courts is practically obsolete after the insertion of section 411A in the Code. We, therefore, recommend that the words cited above should be omitted from the section.
26.17. High Court's power of review.-
It is to be noted that the judgment referred to in section 369 is the judgment of a criminal court in its original jurisdiction vide section 366(1). The rule in section 369 that no court shall alter or review its own judgment except to correct a clerical error is made applicable by section 424 to the judgment of any appellate court other than a High Court. The question whether a High Court has any inherent power of reviewing its judgment in an appeal or revision will be considered later under section 561A.
26.18. Section 370.-
Section 370 relieves a Presidency Magistrate of the task of writing a detailed judgment setting out the point or points for determination, the decision thereon, reasons for the decision, etc., as provided in section 367 for other Magistrate. He has only to record the essential particulars of the case and the final order in all cases, and in those cases in which he inflicts imprisonment, or fine exceeding Rs. 200, or both, a brief statement of the reasons for the conviction.
It will be noticed that under section 411 a sentence of fine not exceeding Rs. 200 is not appealable and, presumably because of this fact, section 370, clause (i) does not require a Presidency Magistrate to record the reasons for the conviction when the fine is within this limit. In regard to sentences of imprisonment, however, the said clause is not logical even where the imprisonment inflicted is not more than six months and consequently the sentence is not appealable under section 411, the Presidency Magistrate has to record reasons for the conviction.
Then again, although a judgment of acquittal is appealable under section 417, the Presidency Magistrate need not record even a brief statement of the reasons for his decision which the prosecution might not always find satisfactory. We consider that it would be more logical and reasonable to provide in clause (1) of section 370 that, in all cases in which an appeal lies from the final order either under section 411 or under section 417, the Presidency Magistrate should record a brief statement of the reasons for his decision. This clause should be amended to rea.-
"(1) in all cases in which an appeal lies from the final order either under section 411 or under section 417, a brief statement of the reasons for the decision."
26.19. Section 371.-
Under su.-section (1) of section 371, a copy of the judgment has to be given without delay to the accused on his application. Though the section does not say that this should be a certified copy, the Supreme Court has held1 that "whether it is the accused person who applies for a copy under section 371, su.-sections (1) and (2) or it is the State which applies for a copy, the copy supplied by the public officer must be a certified copy." In conformity with this interpretation the words "certified copy" may be substituted for the word 'copy'.
This su.-section further provides that the copy shall be given free of cost except in a summons case. Considering that the main object of the su.-section is to facilitate the lodging of an appeal by the accused without avoidable delay, we propose that the second sentence of su.-section (1) should be amended to read "such copy shall, in every case where the judgment is appealable by the accused, be given free of cost."
In cases where the High Court passes or confirms or maintains a death sentence, a certified copy of the judgment should, in our view, be immediately given to the accused whether or not he applies for it. This would enable him to make immediate preparations for an appeal.
Accordingly, su.-section (1) of section 371 may be simplified to read as follows.-
"371. Copy of judgment to be given to accused.- (1) On the application of accused, a certified copy of the judgment, or when he so desires, a translation in his own language, if practicable, or in the language of the Court, shall be given to him without delay. Such copy shall, in every case where the judgment is appealable by the accused, be given free of cost:
Provided that where a sentence of death is passed, confirmed or maintained by the High Court, a certified copy of the judgment shall be immediately given to the accused free of cost, whether or not he applies for the same.
Su.-section (2) of section 371 may be omitted as it relates to trials by jury and consequentially the words "or su.-section (2)" in su.-section (4) may also be omitted. Su.-section (3) does not require any change.
Since an order under section 118 may result in the imprisonment of the defendant, we think it desirable that the provisions of su.-section (1) of this section should also apply to any order under section 118. We, therefore, propose the addition of a new su.-section (2) in lieu of the existing su.-section (2) reading as follows.-
"(2) The provisions of su.-section (1) shall apply in relation to an order under section 118 as they apply in relation to a judgment which is appealable by the accused."
26.20. Sections 372 and 373.- No changes are needed in sections 372 and 373.