The main legal point established in the judgment is that a successor Judge cannot pronounce the judgment written by his predecessor, and in cases where summary procedure was adopted, a de novo trial is necessary. The judgment also clarified that hearing on the question of sentence is not necessary in cases tried under summary procedure.

JUDGMENT :

S. Pujahari, J. - This is a Reference made by the learned District & Sessions Judge Sambalpur under Section 395 of the Code of Criminal Procedure (for short "Cr.P.C.") for decision of this Court.

2. The questions those have been posed under the Reference are as follows:-

(1). Can a successor Judge hear the convict on the question of sentence and sign and pronounce the judgment written by his predecessor who has held the accused guilty and convicted him ?

(2). In view of the specific bar of Section 326(3) Cr.P.C. can a case be tried denovo after the accused is held guilty and convicted.

(3). In view of the specific provisions contained in Sections 255(3) 262 and 264 Cr.P.C. is the hearing on the question of sentence necessary keeping in view the direction given in G.L.7 of 74 (Crl.).

3. In the context I have heard Shri G.N. Mohapatra the learned counsel engaged in this case as Amicus Curiae as well as the learned Addl. Standing counsel for the State.

4. It is apposite at the outset to have a reference to Section 35 of Cr.P.C. according to which subject to the other provisions of the Cr.P.C. the powers and duties of a Judge or Magistrate may be exercised or performed by his Successor in his office. In case of doubt as to who is the Successor in office of the Additional or Assistant Sessions Judge or in the office of any Magistrate it is the Sessions Judge on sessions side and the Chief Judicial Magistrate or the District Magistrate as the case may be on magisterial side who are competent to determine the same by a written order.

5. Section 326 of Cr.P.C. authorizes the Successor in office to act on the evidence recorded wholly or in part by his Predecessor in an inquiry or trial. The said Section is reproduced here below :-

326. Conviction or commitment on evidence partly recorded by one [Judge or Magistrate] and partly by another (1) Whenever any [Judge or Magistrate] after having heard and recorded the whole or any part of the evidence in an inquiry or a trial ceases to exercise jurisdiction therein and is succeeded by another [Judge or Magistrate] who has and who exercises such jurisdiction the [Judge or Magistrate] so succeeding may act on the evidence so recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself:

Provided that if the succeeding [Judge or Magistrate] is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice he may resummon any such witness and after such further examination cross-examination and re-examination if any as he may permit the witness shall be discharged.

(2) When a case is transferred under the provisions of this Code [from one Judge to another Judge or from one Magistrate to another Magistrate] the former shall be deemed to cease to exercise jurisdiction therein and to be succeeded by the latter within the meaning of sub-section (1).

(3) Nothing in this Section applies to summary trials or to cases in which proceedings have been stayed under Section 322 or in which proceedings have been submitted to a superior Magistrate under Section 325.

[Underlining by me]

6. Now coming to Sections 353 and 354 of Cr.P.C. which have direct bearing on the present questions while Section 353 speaks of the mode and manner of delivery and pronouncement of the judgment Section 354 enumerates the body requirements of the same in a criminal case. In view of Clause (c) of sub-section (1) of Section 354 of Cr.P.C. a judgment of conviction is not complete without specific mention of the punishment to which the convict is sentenced. Of course where the convict is dealt with as per the provisions of Section 360 Cr.P.C. or the Probation of Offenders Act 1958 the question of sentence does not arise and in that case an order regarding release of the convict as per those provisions will suffice the completeness of the judgment.

7. Sub-sections (5) (6) and (7) of Section 353 of Cr.P.C. which are relevant for