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TMI Blog2017 (1) TMI 1531X X X X Extracts X X X X X X X X Extracts X X X X ..... omes to a court of law expects that inherent and essential principles of adjudication like adherence to doctrine of audi alteram partem, rules pertaining to fundamental adjective and seminal substantive law shall be followed and ultimately there shall be a reasoned verdict. When the accused faces a charge in a court of law, he expects a fair trial. The victim whose grievance and agony have given rise to the trial also expects that justice should be done in accordance with law. Thus, a fair trial leading to a judgment is necessitous in law and that is the assurance that is thought of on both sides. The exponent on behalf of the accused cannot be permitted to command the trial as desired by his philosophy of trial on the plea of fair trial and similarly, the proponent on behalf of the victim should not always be allowed to ventilate the grievance that his cause has not been fairly dealt with in the name of fair trial. Therefore, the concept of expediency and fair trial is quite applicable to the accused as well as to the victim. The result of such trial is to end in a judgment as required to be pronounced in accordance with law. And, that is how the stability of the creditability in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the Full Court of the High Court on 04.03.2008 on which date a resolution was passed placing the concerned trial judge under suspension in contemplation of a departmental inquiry. At the same time, the Full Court took the decision to transfer the cases in question from the concerned trial judge to the file of District and Sessions Judge, Surguja at Ambikapur for rehearing and disposal. It is worthy to note here that the concerned officer was put under suspension and after completion of inquiry was imposed with the punishment of compulsory retirement on 22.03.2011. We make it clear that we are not concerned with the said punishment in the case. 4. After the decision was taken for transferring the cases by the Full Court for rehearing, three writ petitions forming the subject matter of Writ Petition (Criminal) Nos. 2796 of 2008, 2238 of 2008 and 276 of 2010 were filed. The accused in Sessions Trial No. 148 of 1999 filed Writ Petition (Criminal) Nos. 2796 of 2008 and 2238 of 2008 and accused in Sessions Trial No. 71 of 1995 filed the other writ petition, that is, Writ Petition (Criminal) No. 276 of 2010. 5. The controversy really centers around two issues, namely, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides for trial before a court of session. Section 227 empowers the trial judge to discharge the accused after hearing the submissions of the accused and the prosecution and on being satisfied that there is no sufficient ground for proceeding against the accused. The key words of the Section are "not sufficient ground for proceeding against the accused". Interpreting the said provision, the Court in P. Vijayan v. State of Kerala and another[(2010) 2 SCC 398] has held that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 clause (c) of sub-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 one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Every order under section 117 or sub-section (2) of section 138 and every final order made under section 125, section 145 or section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision." 13. Section 362 has the heading "Court not to alter judgment." The said provision is as follows:- "362. Court not to alter judgment.?Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." 14. Interpreting the said provision in the context of exercise of inherent power of the High Court under Section 482 CrPC this Court in Smt. Sooraj Devi v. Pyare Lal and another[(1981) 1 SCC 500] held thus:- "5. The appellant points out that he invoked the inherent power of the High Court saved by Section 482 of the Code and that notwithstanding the prohibition imposed by Section 362 the High Court had power to grant relief. Now it is well settled that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1960 Mad 507]. As a matter of fact, on inquiry, the High Court in the administrative side had found there was no judgment available on record. Learned counsel for the appellants would submit that in the counter affidavit filed by the High Court it has been mentioned that an incomplete typed judgment of 14 pages till paragraph No. 19 was available. The affidavit also states that it was incomplete and no page had the signature of the presiding officer. If the judgment is not complete and signed, it cannot be a judgment in terms of Section 353 CrPC. It is unimaginable that a judgment is pronounced without there being a judgment. It is gross illegality. In this context, we may refer to a passage from State of Punjab and others v. Jagdev Singh Talwandi[(1984) 1 SCC 596] wherein expressing the opinion for the Constitution Bench, Chandrachud, C.J. observed thus:- "30. We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case, the judgment is not available on record and hence, there can be no shadow of doubt that the declaration of the result cannot tantamount to a judgment as prescribed in the CrPC. That leads to the inevitable conclusion that the trial in both the cases has to be treated to be pending. 20. The next issue that emerges for consideration is whether the High Court on its administrative side could have transferred the case from the Second Additional Sessions Judge, Ambikapur to the Court of District and Sessions Judge, Surguja at Ambikapur. In this regard, it is suffice to understand the jurisdiction and authority conferred under the Constitution on the High Court in the prescription of power of superintendence under Article 227. Article 227 of the Constitution reads as follows:- "227. Power of superintendence over all courts by the High Court:-(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. (2) Without prejudice to the generality of the foregoing provisions, the High Court may- (a) call for returns from such courts; (b) make and issue general rules and prescribe forms for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion that the learned trial judge had really not passed any judgment, resolved that the matter should be heard by the learned Sessions Judge and accordingly the Registrar General of the High Court communicated the decision to the concerned learned Sessions Judge. The submission of the learned counsel for the appellant is that such a power could not have been exercised by the Full Court on the administrative side, for in exercise of administrative authority, the High Court cannot transfer the case. The contention is that High Court can only transfer the case in exercise of power under Section 407 and that too on the judicial side. Our attention has also been drawn to Section 194 of CrPC. Section 194 empowers the Additional and Assistant Sessions Judges to try cases made over to them. The said provision reads as follows:- "194. Additional and Assistant Sessions Judges to try cases made over to them.? An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try." 23. It is argued that Section 194 can be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercised." Proceeding further, the Court held that:- "So long as power can be and is exercised purely for administrative exigency without impinging upon and prejudicially affecting the rights or interests of the parties to any judicial proceeding we do not find any reason to hold that administrative powers must yield place to judicial powers simply because in a given circumstance they coexist. On the contrary, the present case illustrates how exercise of administrative powers were more expedient, effective and efficacious. If the High Court had intended to exercise its judicial powers of transfer invoking Section 407 of the Code it would have necessitated compliance with all the procedural formalities thereof, besides providing adequate opportunities to the parties of a proper hearing which, resultantly, would have not only delayed the trial but further incarceration of some of the accused. It is obvious, therefore, that by invoking its power of superintendence, instead of judicial powers, the High Court not only redressed the grievances of the accused and others connected with the trial but did it with utmost dispatch." 24. The Court distinguished the authority in A.R. Antulay ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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