Hanuman Singh vs State Of U.P. And Another
2013 Latest Caselaw 1986 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No.4
 
Criminal  Misc. Case No. 1523 of 2005
 
Hanuman Singh   .............................  Petitioner
 
Versus
 
State of U.P. And another ..............     Opp.Parties.
 
******
 
Hon'ble  Ravindra Singh,J.

Heard Sri Sushil Kumar Singh, learned counsel for the applicant and the learned A.G.A. for the State of U.P.

This application under section 482 Cr.P.C. has been filed by the applicant Hanuman Singh, with a prayer to quash the proceedings of Criminal Case No. 2273 of 2004 under sections 419,420 I.P.C. P.S. Kotwali Amethi, district Sultanpur pending in the court of learned IIIrd Additional Chief Judicial Magistrate, court No. 19 Sultanpur.

The facts, in brief, of this case are that the applicant is facing trial for the offence punishable under sections 419, 420 I.P.C.,it is a case in which, after closing the evidence and hearing the arguments from both the sides the date of judgment was fixed on 2.2.1999, the judgment could not be pronounced because the judgment could not be transcribed therefore, the next date for pronouncing the judgment was fixed on 12.2.1999 by the IInd learned Additional Chief Judicial Magistrate, Sultanpur. On 12.2.1999 the order of acquittal was pronounced in open court by the trial court, the order sheet was accordingly maintained and signature of the applicant was also obtained on it. on the same day the counsel for the applicant applied for the certified copy of the order of the judgment but subsequently, it has been revealed that the judgment was not complete, its only two pages were typed another page number 3 was left blank bearing the signature of accused Hanuman Singh. In this regard, an inquiry was held against the Presiding Officer, Sri Ramesh Kumar Tripathi, who was placed under suspension , the explanation was given by the Presiding Officer Ramesh Kumar Tripathi and a report was submitted by District Judge, Sultanpur mentioning therein that the Presiding Officer has acquitted the accused person but did not get the judgment prepared. After conclusion of the inquiry by the High Court, the record was sent back to the Judgeship of Sultanpur, after receiving the same, it has been sent by the District Judge Sultanpur to the court concerned to proceed further with the matter as per law, against the applicant.

The file of criminal case no. 512 of 1998, bearing new No.2273 of 2004 has been sent to the court of Additional C.J.M. Court No. 18, the Presiding Officer of the Court No.18 sought a direction from the District Judge, in this regard because 'he found that according to the order sheet the case was already decided and some part of the judgment was also annexed with it' then by order of the District Judge, the case was recalled and sent back to the court concerned having jurisdiction to hear cases relating to police station Amethi, district Sultanpur where it was received on 31.3.2004. The court concerned passed the order for issuing notice for appearance of the accused applicant. On 4.10.2004, by the orders of the Chief Judicial Magistrate,Sultanpur the case was again transferred to Court no.19, the court no. 19 passed the order for issuing non bailable warrant and also for initiating the proceedings under section 82/83 Cr.P.C. against the accused applicant, the bail bonds have also been forfeited and the notices have been issued to the sureties under section 446 Cr.P.C., meanwhile the applicant appeared before the court concerned and moved an application for recalling N.B.W. on the ground that he has already been acquitted by the trial court, the next date 30.8.2005 was fixed by ACJ.M. for further orders. The applicant has moved the present application with a prayer that now proceedings initiated/pending against the applicant in the court of Additional C.J.M. Court No. 19, Sultanpur, may be quashed.

It is submitted by the learned counsel for the applicant that it is a case in which the Presiding Officer pronounced the judgment in open court by acquitting the applicant, its endorsement has been made in the order sheet, in case complete judgment has not been delivered, the applicant may not be further prosecuted. The further prosecution of the applicant after pronouncing the judgment of acquittal in open court, is illegal and against the principle of natural justice,therefore, the proceedings initiated against the applicant, pending in the court of Additional C.J.M. Court No. 19, are illegal and the same may be quashed.

In reply of the above contention it is submitted by the learned A.G.A. that it is a case in which complete judgment has not been given by the Presiding Officer, the pronouncement made by the Presiding Officer in the open court, acquitting the accused applicant without delivering complete judgment in writing may not said to be illegal and for every case reasoned order in writing for acquittal or conviction is required. In the present case the Presiding Officer had not delivered a complete judgment, pronouncement of acquittal by the Presiding Officer in open court may be made on the basis of complete judgment in writing ,without it the accused may not be treated to be acquitted he has to face the criminal proceedings till the complete judgment in writing is not delivered. The present application is devoid of the merits, the same may be dismissed.

After considering the facts, circumstances of the case, the statement made by the counsel for the applicant learned A.G.A. for the State of U.P. and from the perusal of the record, it appears that the controversy involved in the present case is whether without delivering the complete judgment but pronouncing the judgment of acquittal in open court, the accused person may be tried again till the conclusion of the trial or till the delivery of complete judgment. In the present case, the trial court on 12.2.1999 pronounced the order of acquittal in open court, its entry has been made in the order sheet and the signature of the accused applicant has been obtained on the order sheet also, but subsequently it was found that the complete judgment has not been delivered by the Presiding Officer. The Presiding Officer orally pronounced the order of acquittal in open court but it was not based on the complete judgment. The proper procedure has been prescribed by section 353 of the Code of Criminal Procedure to deliver the judgment. The Section 353 Cr.P.C. reads as under.

"353. Judgment:- (1) The judgment in every trial in any Criminal Court or 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 in a language which is understood by the accused or his pleader.

(2) Where the judgment is delivered under clause (a) of sub-section (1), the presiding officer shall cause it to be taken down in short-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 open Court.

(3) 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.

(4) Where the judgment is pronounced in the manner specified in the clause (c) of subsection

(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 one or more of them do not attend the Court on the date on which 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 465."

According to the provisions of section 353 Cr.P.C. also, it requires that the judgment shall be pronounced in open court by the Presiding Officer immediately after 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 understood by the accused or his pleaders.

It shows that for pronouncement of the judgment in open court by the Presiding Officer, the judgment as a whole in writing must be available. The sub section 2 of section 353 Cr.P.C. shows that every page of the transcribed judgment be signed by the Presiding Officer on the date of delivery in open court but in the present case in the name of judgment only two pages were transcribed and a blank page signed by the accused was annexed therein. The provisions of section 353 Cr.P.C. are very clear for pronouncing the judgment in open court. For pronouncing the judgment in open court the judgment in writing is necessarily required. If the whole of the judgment in writing is not available the pronouncement of the judgment in open court may not be done and making its entry in the order sheet is not proper. In the present case the pronouncement of acquittal has been made in open court without having the whole of the judgment in writing by making such its entry in the order sheet which is not proper and is not in accordance with law. After the termination of the trial for pronouncing the judgment there is a necessary requirement for having whole of the judgment in writing. If whole of the judgment is not available, the oral pronouncement made in court is not legal and proper and not amounts to the acquittal of the accused applicant. The learned District Judge Sultanpur has not committed any error in sending the record of this case to the court concerned for proceeding further and the court concerned has also not committed any error in sending the notice to the applicant for his appearance. The termination of the criminal case shall be completed only after the pronouncement of the judgment by the trial court in the open court. In the present case, the judgment as a whole in writing is not prepared for which the court concerned shall proceed further in accordance with law. There is no illegality in the proceedings pending against the applicant before the trial court, therefore, the prayer for quashing the proceedings pending against the applicant in the court of learned ACJM Court no 19 ,Sultanpur is refused.

The applicant shall appear before the court concerned within 60 days from today and shall furnish his fresh bail bonds in the court concerned, the court concerned shall conclude the proceedings of the trial expeditiously without any delay.

The interim order dated 29.6.2005 is vacated.

With the above direction this application is finally disposed of.

Dated : 13.5.2013

Su