Magisterial Judgments and How to Write Them

The only point of substance often urged in the High Court in Criminal Appeals and in Criminal Revision Cases is that the judgment of the Magistrate is not in conformity with the requirements of the Criminal Procedure Code.

This plea has become so familiar and nay fashionable that it is worthwhile to examine what are the real requirements of the judgment of a Magistrate.

The Criminal Procedure Code lays down that a judgment should contain :

• The points for decision;
• the decision; and
• the reasons for the decision.

It shall specify the offence of which and the section under which the accused is convicted and the punishment to which he is sentenced. How judgment in the alternative and judgments of acquittal should be framed are particularised in section 367 (3) and (4) of the Criminal Procedure Code.

The judgment should be dated and signed by the presiding officer in open court at the time of pronouncing it (Judgment not part of trial : — ‘Inayat v. Rex’, AIR 1950 All 369 : 51 Cri LJ 1013).

Magistrates must not omit to deal with any of these points. The judgment must be complete by itself but this does not mean it should be a resume of the evidence or collection of statements of witnesses or discussion of the entire evidence with minute details or elaborate discussion of discrepancies which are generally more apparent than real and bound to occur even in the most truthful cases : — ‘In re, Varada Rajulu Pillai’, AIR 1923 Mad 144 (1) : 23 Cri LJ 602; — ‘Jitendra Nath v. Emperor’, (AIR 1937 Cal 99 : 38 Cri LJ 818 (SB) ); — ‘Jhabwala, S. H. v. Emperor’, (AIR 1933 All 690 : 34 Cri LJ 967). A careful analysis and appraisement of the evidence is all that is required.

In this connection the Civil Justice Committee has well pointed out : Judgments in India are usually too long and too laboured. The tendency is not to be satisfied with being convincing but to be exhaustive. This tendency has been strengthened by the habit of some presiding officers of the Appellate Courts to expect too much from the judgment. Criticism is sometimes levelled too freely at supposed omissions. Subordinates have undoubtedly become sensitive on this point and take refuge in excessive caution. The result is expenditure of unnecessary time and energy. “No exact instructions can be given as to how a judgment should be prepared. The Judges individually must be given free scope. But it is desirable that some principles should be laid down administratively and that those principles should be accepted consistently by the officers writing the judgments and the presiding officers of the Appellate Courts.”

These instructions have not however been laid down, though from time to time senior civilian officers have attempted to instruct the subordinate Magistrates in the art of writing judgments. I have myself appended a note on “judgment writing” in my Magisterial and Police Guide (M. L. J. Office)

Vol. II, page 2563 and following. Those desirous of making a detailed study may profitably consult Dr. S. S. Nehru, “Judgments and How to Write Them” and H. P. Varshni “Criminal Trial and Judgment.”

Judgments of Trial Courts

It is to be feared that a few Magistrates do not always realise the importance of properly arranging the facts which they put into their judgments. Frequently they do not divide them into a sufficient number of paragraphs; therefore, their paragraphs are too long and often contain a large mass of material accumulated together without orderly or logical arrangement. Confusion of writing connotes confusion of mind which results in the obscuring of the important points of a case and the omission of some of its essential details. The time spent in producing a judgment should be more in thinking out the logical sequence than in the actual writing.

The Divisional Magistrate and the District Magistrate have a good deal of work to do in reading through these judgments and are often compelled to refer them back to the Sub-Magistrates with queries, thus wasting time and energy. Further, these judgments are frequently the subject of appeal and revision proceedings and difficulty arises where a Magistrate has not expressed clearly and convincingly his reasons for passing sentence. On the other hand, if a judgment is clearly written and the salient points of the evidence are properly discussed and convincingly arranged there are likely to be fewer cases of appeal or revision against it. This note suggests to Magistrates a method by which they can arrange their subject clearly and the principles on which it should be split up into paragraphs. The main principle of composition is a logical arrangement of facts. It is well to remember also that where a lot of complicated details has to be gone into, the general trend of it should be briefly described in the first place so as to prepare the mind to receive the detail.

Principles of arrangement

We can consider the materials of a criminal judgment in this way:

Stated briefly, the function of the Magistrate is to decide first, whether certain things have occurred and secondly, if he finds that these things have occurred, to apply the law to these facts. The process of applying the law to the facts give rise to his decision, thus:

• Facts Law

• Decision.

As we have said, the Magistrate must consider the facts first in order and then the law.

The facts consist of — prosecution evidence, and defence evidence.

So the logical arrangement of our material is, for practical purposes

• prosecution evidence;
• defence evidence; and
• decision.

I shall now proceed to develop in detail the various sub-divisions into which (a), (b) and (c), respectively can be divided by paragraphs. It is, of course, impossible to prescribe a hard and fast list of paragraphs which can be applied to every case that comes before a Court but the selection that I have made may be applied with very little variation to the most of cases that come before Sub-Magistrates. It is intended more as a general guide than as an instruction. In any case Magistrates should number each paragraph they use in their judgments.

1. Table of paragraphs
2. Prosecution evidence.
3. Introductory.
4. Procedure.
5. Status of parties.
6. Former history.
7. Prosecution story.
8. Discussion of evidence of prosecution witnesses individually.
9. Discussion of evidence of prosecution witnesses generally.
10. Defence evidence
11. Accused’s explanation.
12. Charge and plea.
13. Cross examination, after charge
14. Evidence of defence witnesses.
15. Summary of defence evidence, and, if necessary, of prosecution evidence.
16. Decision
17. Finding and sentence.
18. Notes on the paragraphs

A-1. Introductory: Name of accused — By whom charged or complained against — Name and section of offence — Time and place — Add description of property in offences against property.

In some cases, for example, forest cases, a description of the locality with a clear definition of the boundaries may be necessary. Always obtain a plan in cases involving offences connected with traffic or matters of complication.

A-2. Procedure: This includes a reference to any important legal points raised in a case, e.g. transfers, explanation of delay, etc. This paragraph, of course, will not always be necessary, and its contents in some cases might be included in paragraph (1).

A-3. Status of parties: Relationship between the principal, if any; relationship with prosecution or defence witness, if any. A geneological table should be drawn to illustrate complicated relationships.

A-4. Former history: This will not be necessary in a case like an ordinary theft case. But where the incidents arise out of a faction, etc., it may be necessary. Prosecution witnesses mentioned here must be introduced by name and status as indicated in paragraph A-5.

A-5. Prosecution story: Describe as each prosecution witness is introduced his name and status. If the story is a long one and the number of prosecution witnesses large, it will be advisable to split this up into

• Description of status, etc., of prosecution witnesses.
• Prosecution story.

It may also be necessary to allot a separate paragraph to the evidence of such prosecution witnesses.
An alternative arrangement is possible. Instead of dividing up by prosecution witnesses, we divide up by incidents in the story. This may be desirable where the story is a long one. Each paragraph will then describe a definite incident, e.g., in a case of theft we might have paragraphs describing—

• discovery of the theft by the complainant;
• the search for the missing property;
• its recovery;
• the arrest of the thief:
• the making of the complaint.

Where there are many accused it is desirable that there should be a clear summary of the evidence against each accused, and it may be necessary that such summary should form a separate paragraph.

A-6. Discussion of evidence of prosecution witnesses individually: We have to decide in general whether our discussion of the prosecution evidence is to be made from the point of view of what each witness successively tells us, and then we should, as far as possible, allot a separate paragraph to each witness and consider his evidence mainly from the point of view of—

• interest,
• demeanour,
• self-contradictions, and
• contradictions with evidence of other prosecution witnesses.

If we discuss the evidence from the point of view of certain incidents, each important incident should be allotted a separate paragraph.

Documents
In cases where documents and their interpretation form an important part of the evidence, it may be well to allot a separate paragraph for the examination of the documents filed or of each important document.

Material Objects
Again, it may be desirable to allot a separate paragraph to a discussion of the material objects in a case; or even of a single material object, if a complicated question arises in regard to it.

Injuries
The same remarks apply to the discussion of injuries as to that of documents and material objects.

A-7. Discussion of prosecution evidence generally—

(a) Complaint when made and to whom and what accused and witnesses are mentioned therein. The original report or complaint is a document of vital importance, and a test of the truth of statements made by the witnesses.
(b) Medical Evidence.
(c) Motive.
(d) General probabilities.

B-8. Accused’s explanation: Defence evidence may consist of—

• occurrence evidence,
• alibi evidence, or
• evidence directed to show that complaint is false or a combination of these. Each may form a subject of a separate paragraph, if necessary.

B-9. Charge and plea: You should have already in your A paragraphs set forth your reasons for framing a charge at this stage of the case. In framing charge do not confuse the action of different accused, but state clearly and separately what each has done; have your Code open before you at the section and follow the actual wording of the section as closely as you can. Be meticulously accurate.

B-10. Cross-examination after charge : Here you will discuss the effect of the cross-examination after charge on the prosecution story as told in the examination-in-chief. If necessary, a separate paragraph may be allotted to each prosecution witness or to each incident as the case may be.

B-11. Evidence of defence witnesses : See remarks under A-5.

B12. Summary and defence evidence and, if necessary, of prosecution evidence : See remarks under A-6 and A-7. If you think the prosecution evidence is strong enough ,to convict, do not waste time in a long discussion of the defence evidence. Be quite brief with it.

C-13. Finding and sentence : When there are several accused specify separately, if you have not already done so, the evidence against each and deliver against each a clear and separate finding.

The Judgment should not omit to specify the disposal of the M.O.S. in the case.

Adopt a normal standard of punishment for various crimes and if you deviate widely from it, explain your reasons in your judgment. . Do not club sentences as the High Court deprecates this procedure (High Court’s P. Dis. 8830 dated 23-1-1930). Finally above all things, be brief.

Summons Cases

The question arises whether the arrangement in a summons case should differ from that in a warrant case. It should do so to this extent, that the allegations in the complaint and the accused’s plea should in a summons case judgment come at the beginning, whereas in a warrant case judgment the accused’s statement and plea will come after the discussion of the prosecution evidence. It is not worthwhile, however, drawing up a separate table for the order of paragraphs in a summons case and Sub-Magistrates should use their own common sense in making the slight modifications required.

Note the demeanour of witnesses in your judgment -
The demeanour and bearing of a witness should be very closely observed. Unless the witness is a skilled actor, his demeanour frequently furnishes a clue to the weight of his testimony. It is because the trial Judge had the advantage of seeing the witnesses that it has been repeatedly held that his decision on a question of fact should not be lightly disturbed. “The most careful note must often fail to convey the evidence fully in some of its most important elements, those for which the open oral examination of the witness in presence of prisoner, judge and jury, is so justly prized. It cannot give the look or manner of the witness : his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration; it cannot give the manner of the prisoner, when that has been important, upon the statement of anything of particular moment. It is, in short, or it may be, the dead body of the evidence, without its spirit, which is supplied when given openly and orally, by the ear and eye of those who receive it” (Per Sir John Coleridge in ‘R. v. Bertrand’, (1867) 1 PC 520, at p. 533). When the question of credibility depends on the demeanour in the box, the manner in which the witness answers and by how he seems to be affected by the question put and so on, the trial Judge has an advantage. But when the views upon credibility are founded upon argumentative inferences from facts not disputed, the Court of appeal is really in as good a situation as the trial Judge (‘Palchur Sankarareddi v. Palchur Mahalakshmama’, AIR 1922 PC 315). The absence of a separate note regarding demeanour of a witness is immaterial, specially when judgment is written before the recollection of the Judge has become dim (See remarks of Lord Atkins during argument in ‘Sitalakshmiah Ammal v. Venkata Subrahmanian’, AIR 1930 PC 170). When Judges arrive at a conclusion after seeing demeanour, it will be difficult to reject their appreciation, except upon grounds which prove that their view was wrong (‘Nand Kishwar Bux v. Gopal Bux’, AIR 1940 PC 93). The judgments should therefore clearly indicate the assessment of the demeanour of all important witnesses by the presiding trial Magistrate : (Study also—’Kyi Oh, Maung v. Ma Thet Pon’. AIR 1926 PC 29; ‘Mauladad Khan v. Abdul Sattar’, AIR 1917 All 35; ‘Bombay Cotton Manufacturing Co. v. Motilal Shivlal’, AIR 1915 PC 1; ‘Emperor v. Bishen Singh’, AIR 1914 Lah 427 (2) : 15 Cri LJ 203; ‘Fatu Santal v. Emperor’, AIR 1921 Pat 109 : 22 Cri LJ 417).

Don’t waste time in examining discrepancies unless they are material and affect your conclusions one way or the other -
Discrepancies like sitting or standing, facing North or South or who snatched the ‘dang’ etc., at the occurrence are immaterial : ‘Emperor v. Satyendra Kumar Dutt’, AIR 1923 Cal 463 : 24 Cri LJ 193. Prosecution evidence should not be rejected on immaterial discrepancies or probabilities, ‘King-Emperor v. Naratam’, AIR 1923 Oudh 217 : 24 Cri LJ 770; where illiterate villagers come forward to depose as to evidence which was crowded into their memory for a few moments, any little discrepancy or contradiction should not be taken as proof of their mendacity : ‘Mahla Singh v. Emperor’, AIR 1931 Lah 38 : 32 Cri LJ 522; where evidence for the prosecution has been implicating the accused, the latter should not merely rely on discrepancies and exaggerations in the prosecution story but must lead evidence : ‘Ghanshyam Singh v. Emperor’, AIR 1928 Pat 100 : 29 Cri LJ 239. Very often discrepancies only reveal the untutored veracity of the witnesses. If witnesses had been tutored such discrepancies would have been ironed out beforehand and they will repeat parrot-like the same version without any flaw or discrepancy. There are discrepancies of truth as well as discrepancies of falsehood and too minute attention to immaterial commonplace discrepancies would lead only to failure of justice : ‘Crown v. Harnama’, 15 Pun Re 1909 Cr.

Be careful of case-law -
Whenever a Magistrate is called upon to decide a question of law it becomes his duty to ascertain whether any pronouncement of the Supreme Court or his own High Court exists on the point. That is why in this State Magistrates and Judges are supplied with Madras Weekly Notes, Madras Law Journal, Indian Law Report and All India Reporter. Omission to refer to these decisions is as much a derelection of duty as omission to refer to sections of the statutes. Disregard of decisions is an act of insubordination and punishable as such : ‘Raghava Mannadiar v. Theyyunni Mannadiar’, AIR 1947 Mad 106; ‘R. v. Ram Dayal’, AIR 1950 All 134 : 51 Cri LJ 436; ‘Karam Hussain v. Mohammad Khalil’, AIR 1946 All 509; ‘King-Emperor v. Deni’, 28 All 62 : 2 Cri LJ 395.

Be brief, be precise and concise and be sure of yourself -
A lengthy judgment is not necessarily a sound judgment; on the other hand though brevity is a virtue when combined with clarity of thought, it becomes a vice if the judgment is sketchy or laconic. Even a summary trial judgment can be horribly summary. It is better to err on. the side of lengthiness than sketchiness. Indeed many Magistrates when writing judgment appear to follow Rousseau’s recipe for a love-letter—to begin without knowing what you are going to say and to leave off without knowing what you have said.

Cultivate a judicial style, avoid colloquialism, vulgarity, exaggerations, vituperations, reflections on parties not before Court and able to explain for themselves, and all injudicious language, thought and expression. Remember such remarks will invite expungement by the High Court : ‘Maharam v. Emperor’, AIR 1929 Lah 291 : 29 Cri LJ 1102; In the matter of H. Daily’, AIR 1928 Lah 740 : 29 Cri LJ 620; ‘Benarsi Das v. Crown’, AIR 1925 Lah 392 (2) : 26 Cri LJ 1326; ‘Bir Narayan Singh v. King-Emperor’, AIR 1922 Pat 97 : 23 Cri LJ 371; ‘Panchanan Banerji v. Upendra Nath’, AIR 1927 All 193 : 27 Cri LJ 1407; ‘Abdul Aziz v. Emperor’, AIR 1925 Lah 129 : 25 Cri LJ 1245; ‘Baddu Khan v. Emperor’, AIR 1928 All 182 : 29 Cri LJ 336; ‘Pritchand v. Emperor’, AIR 1928 Lah 382 : 30 Cri LJ 18; ‘Gunwant Parashram v. Govind Bhau’, AIR 1928 Nag 242 : 29 Cri LJ 313; ‘Mohammad Qasam v. Anwar Khan’, AIR 1926 Lah 382 : 27 Cri LJ 510; ‘Local Govt. v. Gulam Jilani’, AIR 1925 Nag 228 : 25 Cri LJ 1363; ‘Emperor v. Wazir Singh’, AIR 1930 Lah 1048 : 32 Cri LJ 268; ‘Amar Nath v. King-Emperor’, AIR 1925 Lah 187 : 26 Cri LJ 463.

Never pass an order without the Code open in front of you. It is better to divide your judgment into too many paragraphs than too few. The essential point to bear in mind is that a judgment must contain the following ten particulars :

1. Introduction;
2. prosecution story;
3. summary of prosecution evidence with reference to each P. W. and observations if any concerning the demeanour of each P. W.;
4. statement of the accused under Section 342, Criminal P. C;
5. Charge and the plea of the accused;
6. Defence story;
7. summary of defence evidence with reference to each D. W. and observations, if any, concerning the demeanour of each D. W.;
8. Review of the evidence, the law applicable thereto and the conclusion of the Magistrate;
9. conviction and sentence;
10. disposal of properties concerned in the case.

In conclusion we repeat there is no model judgment nor is there any royal road to it. But the above rules of procedure may, it is hoped, help the junior officer to approach such exactitude as may be assumed to characterise a model judgment : ‘Udharam v. Emperor’, AIR 1932 Sind 143 : 33 Cri LJ 900. Finally, written arguments cannot be received and made the basis of judgments. Documents prepared by one party unless copy is supplied to the other side and checked by the Court itself, cannot be incorporated and references to opinions of Public Prosecutor, etc. should be eschewed, and judgments once delivered cannot be altered except for correcting clerical mistakes or be supplemented by subsequent explanations. Let decision be passed after looking into the whole case. ‘Ex tota materia emergat resolutio’.

Judgments in Appeals

I shall now briefly refer to the contents of an appellate judgment which are regulated by Section 367 read with Section 424, Criminal P. C. An appellate judgment must be self-contained and the High Court must be able to follow it without reference to the trial Court judgment : ‘Dalip Singh v. Emperor’, AIR 1921 Lah 102 : 23 Cri LJ 9; ‘Bindraban v. Bodh Raj’, AIR 1924 Lah 344; ‘Jamait Mullick v. Emperor’, 35 Cal 138 : 6 Cri LJ 427; ‘Solhu v. Kishna Ram’, AIR 1924 Lah 660 : 25 Cri LJ 113; ‘Bindra Ban v. Emperor’, AIR 1920 Lah 335 : 21 Cri LJ 223; ‘Ahmad Ali v. Emperor’, AIR 1930 Lah 1051 : 32 Cri LJ 271; ‘The Roumanian’, AIR 1915 PC 139; ‘Bhag v. Emperor”, AIR 1923 Rang 188 : 24 Cri LJ 920; ‘Thakur Singh v. Emperor’, AIR 1919 Pat 290 (1) : 20 Cri LJ 444; ‘Darogi Chamar v. Emperor’, AIR 1919 Pat 529 : 20 Cri LJ 645. Where neither the facts nor the points for determination nor discussion of those points find a place in a judgment it should be set aside : ‘Kali Charan Das v. Geli Bewa’, 22 Cri LJ 640 (Pat); ‘Hurmat Ali v. Emperor’, 27 Cri LJ 114 (1) (Lah); ‘Maroti v. Mt. Kasabai’, AIR 1927 Nag 88 : 27 Cri LJ 1404. Appellate Court is bound to record the points of determination, the objections of the appellant and its decision thereon with its reasons : ‘Deo Narain v. Chhatoo Raut’, AIR 1922 Pat 157 : 23 Cri LJ 261; ‘Thakar Singh v. Emperor’, AIR 1925 Lah 644 (1) : 26 Cri LJ 1380. If the judgment of the appellate Court does not discuss evidence and facts indicating the occurrence it should be set aside : ‘Gaharali v. Emperor’, AIR 1925 Cal 266 (1) : 25 Cri LJ 901; ‘Dalip Singh v. Emperor’, 29 Cri LJ 1031 (2) (Lah); ‘Bhola Nath Mullick v. Emperor’, 7 Cal WN 30. In case of several accused the appellate judgment must show that the case of each accused was considered : ‘Inatulla Sarkar v. Emperor’, AIR 1925 Cal 618 : 25 Cri LJ 1044; ‘Jamait Mullick v. Emperor’, 35 Cal 138 : 6 Cri LJ 427; ‘Arindra Rajbanshi v. Emperor’, AIR 1917 Cal 285 : 18 Cri LJ 294; ‘In re Cherukath Mammad’, AIR 1916 Mad 1125 : 16 Cri LJ 496; ‘Solhu v. Kishna Ram’, AIR 1924 Lah 660 : 25 Cri LJ 113. In simple cases where the facts are clear no further reason than that evidence is accepted by the Judge is required : ‘Shankar v. Emperor’, AIR 1926 All 318 : 27 Cri LJ 449. The appellate judgment must show that evidence of both sides and pleas raised and pressed in appeal have been considered : ‘Beni v. Emperor’, AIR 1917 Oudh 323 (1) : 18 Cri LJ 689 (1); 8 Cri LJ 314 (sic). An appellate Court in an agreeing judgment need not repeat in extenso all that has been stated by the trial Court : ‘Manicka Reddi v. Emperor’, 1931 Mad WN 119. But if the judgment is of a stereotyped nature so as to suit any judgment of an appellate Court, the judgment should be set aside and appeal be re-heard : ‘Hari Nath v. King-Emperor’, AIR 1921 Pat 487 (1). But if the appellate Court has applied its mind really to the evidence and comes to the necessary findings it cannot be set aside or interfered with in spite of the defects or its unsatisfactory character. Latest decisions embodying these principles set out above are : ‘Abdul Karim v. Emperor’, AIR 1940 Sind 113 : 41 Cri LJ 724; ‘Arindra Rajbanshi v. Emperor’, AIR 1917 Cal 285 : 18 Cri LJ 294; ‘Gaharali v. Emperor’, AIR 1925 Cal 266 (1) : 25 Cri LJ 901 relied on in ‘Tileswar v. Tankeswar’, AIR 1950 Assam 199; ‘Malik Usman v. Muhammad Azim’, 48 Cri LJ 473 (Lab); ‘Durga Charan v. Isamuddin Mahmud’, AIR 1948 Cal 6 : 48 Cri LJ 389; ‘Vanu v. State’, AIR 1950 Kutch 94; ‘Mohd. Hussain v. Emperor’, AIR 1945 Nag 116 : 46 Cri LJ 595; ‘Mohd. Mustaquim v. Sukhraj’, AIR 1945 Oudh 52 : 46 Cri LJ 684. The instructions regarding the writing of judgments by trial Courts apply otherwise with necessary changes to appellate judgments. Appeal once admitted, reasoned order must be written : ‘Zahur Ahmed v. Emperor’, AIR 1948 Sind 23 : 48 Cri LJ 981. If copy of judgment or order is not filed, appeal must be rejected and not dismissed. Then no bar to hear fresh appeal : ‘Sahadeo v, Jagannath’, AIR 1950 Nag 77 : 51 Cri LJ 662. Dismissal of jail appeal bars another on merits filed through counsel : ‘In re Neeladri Appadu’, AIR 1947 Mad 243(1) : 48 Cri LJ 73. If jail appeal and appeal through counsel are filed consolidate both. Appeal admitted cannot be withdrawn : ‘Emperor v. Ghulam Mohammad’, AIR 1942 Lah 296 : 44 Cri LJ 14 (FB). There can be appearance in appeal of an advocate for the complainant with permission of Court : ‘P. C. Tarapore v. Emperor’, AIR 1942 Sind 5 : 43 Cri LJ 345. The Code of Criminal Procedure does not contain a provision similar to O. 21, R. 2 of the Civil Procedure Code, 1908. Under Art. 154, Limitation Act, the period of limitation for appeal under the Code of Criminal Procedure to any Court other than a High Court is thirty days from the date of the sentence or order appealed from. The time for presentation of a criminal appeal may be enlarged for a sufficient cause under S. 5, Limitation Act : ‘Surta Singh v. Emperor’, AIR 1920 Lah 241 : 22 Cri LJ 124; ‘Janakiramayya v. Brahmayya’, AIR 1925 Mad 709 : 26 Cri LJ 1110; ‘Sona Sheikh v. Naib Ali’, 22 Cri LJ 426 (Cal). The provisions of Limitation Act do not apply to application under Ss. 517 and 520, Criminal Procedure Code. In cases of criminal appeal, the time taken for the necessary copy should be excluded under S. 12, Limitation Act : ‘In the matter of Jhabbu Singh’, 10 Cal 642; ‘In the matter of Subba Aitala’, 1 Mad 304; ‘In re Toti Chengan’, 6 Mad HCR 349.

Judgments in References and Revisions

Chapter XXXII, Criminal Procedure Code, which governs references and revisions says nothing about the giving of any reasons for orders passed. It must be taken that the Legislature did not intend to make it obligatory on revisional Courts to give reasons for their orders. Nevertheless it is as a rule desirable that reasons should be given and the pattern set out above should be adhered to : ‘Venkatappa v. Latchanna’, AIR 1942 Mad 653 : 44 Cri LJ 70.

Appeals

In hearing appeals there are two temptations to be resisted. First is to agree with whatever is said by the lower Court on the principle that the men on the spot know best. As David Alec Wilson, I.C.S., in his ‘East and West’ has well said : “To see through the eyes of the men on the spot is a good thing; but it is not enough. It is only the first step to sympathetic knowledge; for the men on the spot seldom see very much, and may not understand what they see.” As the Arabian proverb runs : “The ass may go often to Mecca, but never knows more than an ass.” Humanity everywhere is too abstruse to be deciphered at sight. Secondly, the temptation to differ from a desire to show of. As Plowden in his ‘Grain or Chaff’, p. 19, remarks : “Moreover there are temptations which may well prove on occasion too strong for minds not rigidly disciplined. There is the temptation to think that the appeal would not be made without good cause and the purely human temptation to prove if he can that another is wrong. To agree with another mind seems often tame and unsatisfactory. To overrule gives a conscious sense of superiority. There must always be danger lest considerations like these press too hardly on such undisciplined minds and dispose them without any conscious bias to indulge in the greater luxury of reversing or modifying a decision rather than confirming it; and lastly there is the temptation to acquire cheap popularity with the Bar by ill-considered and wholly unmerited reductions of sentences. Therefore appeals should be decided by minds rigidly disciplined and as little open as possible to such extraneous considerations.”

Remember that our Dharma Sastras emphasise that a Magistrate by his skill should extract from a case the deceit underlying it, as a physician takes out from the body an iron dart by means of surgical instruments : (P. V. Kane, History of the Dharma Sastras, Vol. III, page 271). The proof in criminal cases required is that laid down in S. 3 of the Indian Evidence Act, viz., that a fact is said to be proved or disproved when after considering the matters before it the Court either believes it to exist or does not exist or considers its existence or non-existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it does or does not exist. In other words, it is not sufficient for the prosecutor to establish a probability even though a strong one according to the doctrine of chances; he must establish the fact to a moral certainty—a certainty which convinces the understanding, satisfies the reason, and directs the judgment. The law does not go farther than this, but if the evidence falls short of the requirements under Section 3 of the Indian Evidence Act, the accused must be given the benefit of any reasonable doubt. Lord Darling J. in the trial of Herbert Rowse Armstrong has pointed out : “A reasonable doubt means this, it does not mean that you do not like to do it, it does not mean that it is disagreeable to you, it does not mean that by some possible hypothesis you can arrive at that conclusion. There is hardly anything” of which a really subtle and ingenious mind cannot convince itself; there is hardly any truth which a subtle and ingenious person cannot honestly bring himself to doubt. But it means that you say, you are convinced, unless when you consider the facts you have a reasonable doubt as to whether the matter is proved or whether it is not, a reasonable doubt in this sense. If it is the kind of doubt not such as you would conjure up in the middle of the night, but such a reasonable doubt as in the day time, when you are about your business would lead you to say, “I cannot make up my mind about it”.” Again Lord Darling, J. stated in the trial of Steinie Morrison : “And remember what I have said that it is the characteristic of English Justice that we do not seek to avenge a crime; we do not seek upon the balance of probabilities to say : ‘some one must be held responsible for this’; we only seek to find out by our methods, our strict rules and methods of evidence, whether the accused person is proved to be guilty.” (Notable Trial Series). There is no such invariable rule that justice must ultimately be done. Cases occur where a matter is left in doubt and real justice is not done. It is inadvisable that in following such a will-o’-the-wisp as absolute justice, parties should be put to enormous expense and the time of Courts should be wasted : ‘Debi Dart v. Emperor’, AIR 1928 All 548 : 29 Cri LJ 784. May the spirit of the Dharma Sastras animate our Magistrates instead of too much learning and too many books which make for pedantry, sometimes for indecision, and sometimes in the striking phrases of Lord Justice Du Parcq for the over-valuation of the “form of procedure” at the expense of the “substance of the right” : see F. T. Giles, “The Magistrates’ Courts,” Ch. 40, page 210.

Author Name: Hon'ble Mr Justice P N Ramaswami