Surendra Singh & Ors Vs. The State
of Uttar Pradesh  INSC 69 (16 November 1953)
BHAGWATI, NATWARLAL H.
CITATION: 1954 AIR 194 1954 SCR 330
CITATOR INFO :
F 1974 SC1880 (10) RF 1988 SC 371 (5)
Practice-Judgment-Case heard by two
Judges-Judgment signed by both-Death of one of them-Delivery by the otherValidity
of judgment Allahabad High Court Rules, 1952, Chap. VII, rr. 1-4.
Where a case was heard by a Bench of two
Judges and the judgment was signed by both of them but it was delivered in
court by one of them after the death of the other: Held, that there was no
valid judgment and the case should be reheard.
A judgment is the final decision of the court
intimated to the parties and the world at large by formal "pronouncement
or "delivery" in open court and until a judgment is delivered the
judges have a right to change their mind.
Firm Gokal Chand v. Firm Nand Ram (A.I.R.
1938 P.C. 292) and Mahomed Akil v. Asadunnissa Bibee (9 W. R. 1 F.B.) referred
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 34 of 1953.
Appeal from the Judgment and Order dated the
5th January, 1953, of the High Court of Judicature at Allahabad (Lucknow
Bench), Lucknow (Kidwai and Bhargava JJ.) in Criminal Appeal Register No. 24 of
1952 and Capital Sentence Register No. 4 of 1952 arising out of the Judgment
and Order dated the 19th January 1952, of the Court of the Sessions Judge,
Sitapur, in Sessions Case No. 97 of 1951.
Jai Gopal Sethi (K. P. Gupta, with him) for
G.C. Mathur and Onkar Nath Srivastava for the
1953. November 16. The Judgment of the Court
was delivered by BOSE J.We have three appellants before us. All were prosecuted
for the murder of one Babu Singh. Of these, Surendra Singh alone was convicted
of the murder and was sentenced to death. The other two were convicted under
section 225, Indian Penal Code. Each was sentenced 331 to three years' rigorous
imprisonment and to a fine of Rs. 200.
All three appealed to the High Court at
Allahabad (Lucknow Bench) and the appeal was heard on Filth December, 1952, by
Kidwai and Bhargava JJ. Judgment was reserved. Before it could be delivered
Bhargava J. was transferred to Allahabad.
While there he dictated a, "judgment"
purporting to do so on behalf of himself and his brother Judge, that is to say
it purported to be a joint judgment : he used the pronoun "we" and
not "I". He signed every page of the "judgment" as well as
at the end but did not date it. He then sent this to Kidwai J. at Lucknow. He
died on 24th December, 1962, before the "judgment" was delivered.
After his death, on 5th January, 1953, his brother Judge Kidwai J. purported to
deliver the "judgment" of the court. He signed it and dated it. The
date he placed on it was 5th January, 1953, Bhargava J.'s signature was still
there and anyone reading the judgment and not knowing the facts would conclude
that Bhargava J. was a party to the delivery on 5th January, 1953. The appeal
was dismissed and the sentence of death was confirmed. The question is whether
this "judgment" could be validly delivered after the death of one of
the two Judges who heard the appeal.
The arguments covered a wide range but we
intend to confine ourselves to the facts of this case and only deal with the
narrower issues which arise here.
Delivery of judgment is a solemn act which
carries with it serious consequences for the person or persons involved. In a
criminal case it often means the difference between freedom and jail, and when
there is a conviction with a sentence of imprisonment, it alters the status of
a prisoner from an under-trial to that of a convict; also the term of his
sentence starts from the moment judgment is delivered.
It is therefore necessary to know with
certainty exactly when these consequences start to take effect. For that reason
rules have been drawn up to determine the manner in which and the time from
when the decision is to take effect and crystal lise into an act which is
thereafter final so far as the court delivering the judgment is concerned.
Now these rules are not all the same though,
they are designed to achieve the same result. The Criminal Procedure Code takes
care of courts subordinate to the High Court. Section 366 and 424 deal with
them. The High Courts have power to make their own rules. The power is now
conferred, or rather continued, under article 225 of the Constitution.
The Allahabad High Court framed its present
set of Rules in 1952. They came into force on the 15th of September in that
year. We are concerned with the following in Chapter VII dealing with the
judgment and decree, namely rules 1.4.
These rules provide for four different
situations: (1) for judgments which are pronounced at once as soon as the case
has been heard; (2) for those which are pronounced on some future date, (3) for
judgments which are oral, and (4) for those which are written. These rules use
the word "pronounced" in some places and "delivered" in
others. Counsel tried to make capital out of this and said that a judgment had
to be both "pronounced" and "delivered" and that they were
two different things.
We do not intend to construe these rules too
technically because they are designed, as indeed are all rules, to further the
ends of justice and must not be viewed too narrowly; nor do we desire to
curtail the jurisdiction which the Privy Council point out is inherent in
courts to make good inherent defects caused by accidents such as death. As this
decision of the Judicial Committee was relied on in the arguments we will quote
the passage which is relevant here.
It is at page 295 of Firm Gokal Chand v. Firm
The facts are not the same as here because
the judgment was actually delivered in open court and both the judges who
constituted the Bench were present and concurred in it. But before it could be
signed, one Judge went on leave.
(1) A.I.R. 1938 P.C. 292.
333 The rules required the judgment to be
signed and dated at the time that it was pronounced. Their Lordships said:"The
rule does not say that if its requirements are not complied with the judgment
shall be a nullity. So startling a result would need clear and precise words.
Indeed the rule does not even state any definite time in which it is to be
fulfilled. The time is left to be defined by what is reasonable. The rule from
its very nature is not intended to affect the rights of parties to a judgment.
It is intended to secure certainty in the ascertainment of what the judgment
was. It is a rule which Judges are required to comply with for that object. No
doubt in practice Judges do so comply, as it is their duty to do. But accidents
may happen. A Judge may die after giving judgment but before he has had a
reasonable opportunity to sign it. The court must have inherent jurisdiction to
supply such a defect. The case of a Judge who has gone on leave before signing
the judgment may call for more comment, but even so the convenience of the
court and the interest of litigants must prevail. The defect is merely an
irregularity. But in truth the difficulty is disposed of by sections 99 and
108, Civil Procedure Code." That was a civil case. This is a criminal one.
But section 537 of the Criminal Procedure Code does much the same thing on the
criminal side as sections 99 and 108 do on the civil.
The principle underlying them is the same.
But even after every allowance is made and every effort taken to avoid undue
technicality the question still remains what is a judgment, for it is the
"judgment" which decides the case and affects the rights and liberties
of the parties; that is the core of the matter and, as the Privy Council say,
the whole purpose of these rules is to secure certainty in the ascertainment of
what the judgment was. The question assumes more importance than ever in a
criminal case because of section 369 of the Criminal Procedure Code which
provides that 334 "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, by the Letters
Patent or other instrument constituting such High Court, no court, when it has
signed its judgment, shall alter or review the same except to correct a
clerical error." In our opinion, a judgment within the meaning of these
sections is the final decision of the court intimated to the parties and to the
world at large by formal "pronouncement" or "delivery" in
open court. It is a judicial act which must be performed in a judicial way.
Small irregularities in the manner of pronouncement or the mode of delivery do
not matter but the substance of the thing must be there :
that can neither be bluffed nor left to
inference and conjecture nor can it be vague. All the rest the manner in which
it is to be recorded, the way in which it is to be authenticated the signing
and the sealing, all the rules designed to secure certainty about its content
and matter and be cured; but not the hard core, namely the formal intimation of
the decision and its contents formally declared in a judicial way in open
court. The exact way in which this is clone does not matter. In some courts the
judgment is delivered orally or read out, in some only the operative portion is
pronounced, in some the judgment is merely signed after giving notice to the
parties and laying the draft on the table for a given number of days for inspection.
An important point therefore arises. It is
evident that the decision which is so pronounced or intimated must be a
declaration of the mind of the court as it is at the time of pronouncement. We
lay no stress on the mode or manner of delivery, as that is not of the essence,
except to say that it must be done in a judicial way in open court.
But, however, it is done it must be an
expression of the mind of the court at the time of delivery. We say this
because that is the first judicial act touching the judgment which the court
performs after the hearing. Everything else up till then is done out of court
and is not intended to be the operative act which sets all the consequences
which follow 335 on the judgment in motion. Judges may, and often do, discuss
the matter among themselves and reach a tentative conclusion. That is not their
judgment. They may write and exchange drafts. Those are not the judgments
either, however heavily and often they may have been signed. The final
operative act is that which is formally declared in open court with the
intention of making it the operative decision of the court. That is what
constitutes the "judgment".
Now up to the moment the judgment is
delivered Judges have the right to change their mind. There is a sort of locus
paniteniea, and indeed last minute alterations sometimes do occur. Therefore,
however, much a draft judgment may have been signed beforehand, it is nothing
but a draft till formally delivered as the judgment of the court. Only then
does it crystallise into a full fledged judgment and become operative. It
follows that the Judge who "delivers" the judgment, or causes it to
be delivered by a brother Judge, must be in existence as a member of the court
at the moment of delivery so that he can, if necessary, stop delivery and say
that he has changed his mind. There is no need for him to be physically present
in court but he must be in existence as a member of the court and be in a
position to stop delivery and effect an alteration should there be any last
minute change of mind on his part. If he hands in a draft and signs it and
indicates that he intends that to be the final expository of his views it can
be assumed that those are still his views at the moment of delivery if he is
alive and in a position to change his mind but takes no steps to arrest
delivery. But one cannot assume that he would not have changed his mind if he
is no longer in a position to do so. A Judge's responsibility is heavy and when
a man's life and liberty hang upon his decision nothing can be left to chance
or doubt or conjecture; also, a question of public. policy is involved. As we
have indicated, it is frequently the practice to send a draft, sometimes a
signed draft, to a brother Judge who also heard the case. This may be merely
for his information, or for consideration and criticism. The mere signing of
the 336 draft does not necessarily indicate a closed mind. We feel it would be
against public policy to leave the door open for an investigation whether a
draft sent by a Judge was indended to embody his final and unalterable opinion
or was only intended to be a tentative draft sent with an unwritten
understanding that he is free to change his mind should fresh light dawn upon
him before the delivery of judgment.
Views similar to this were expressed by a
Full Bench of the Calcutta High Court consisting of nine Judges in the year
1867 in Mahomed Akil v. Asadunnissa Bibee(1). In that case, three of the seven
Judges who constituted the Bench handed in signed judgments to the Registrar of
Before the judgment could be delivered, two
of them retired and one died. A Full Bench of nine Judges was convened to
consider whether the drafts of those three Judges could be accepted as
judgments of the court. Seton-Kerr J., who had heard the case along with them,
said-"Certainly as far as I can recollect, they appeared to have fully
made up their minds on a subject which they had very seriously considered, and
on which they had abundant opportunities of forming a final determination. I
am, however. not prepared to say that they might not on further consideration
have changed their opinions..." (p. 13).
Despite this, all nine Judges were unanimous
in holding that those three opinions could not be regarded as judgments in the
formal sense of the term. In our opinion, Jackson J. expressed the law aright
in these words:"I have however always understood that it was necessary in
strict practice that judgments should be delivered and pronounced in open
court. Clearly, we are met today for the first and only time to give judgment
in these appeals; and it appears to me, beyond question, that Judges who have
died or have retired from the court cannot join in the (1) 9 W.R.I. (F.B.) 337
judgment which is to be delivered today, and express their dissent from
it." (p. 5).
Peacock C.J. pointed out at page 30:
"The mere arguments and expressions of
opinion of individual Judges, who compose a court, are not judgments. A
judgment in the eye of the law is the final decision of the whole court. It is
not because there are nine Judges that there are nine judgments. When each of
the several Judges of whom a simple court is composed separately expresses his
opinion when they are all assembled, there is still but one judgment, which is
the foundation for one decree. If it were otherwise, and if each of the
memoranda sent in on the present occasion were a judgment, there would be nine
judgments in one case, some deciding one thing and some another, and each Judge
would have to review his own judgment separately, if a review should be applied
for. " We do not agree with everything which fell from the learned Chief
Justice and the other Judges in that case but, in our opinion, the passages
given above embody the true rule and succinctly explain the reasons for it.
As soon as the judgment is delivered, that
becomes the operative pronouncement of the court. The law then provides for the
manner in which it is to be authenticated and made certain. The rules regarding
this differ but they do not form the essence of the matter and if there is
irregularity in carrying them out it is curable. Thus, if a judgment happens
not to be signed and is inadvertently acted on and executed, the proceedings
consequent on it would be valid because the judgment, if it can be shown to
have been validly delivered, would stand good despite defects in the mode of
its subsequent authentication.
After the judgment has been delivered
provision is made for review. One provision is that it can be freely altered or
amended or even changed completely without further formality, except notice to
the parties and a rehearing on the point of change should that be necessary,
provided it has not been signed. Another is that after signature L/B(D)2SCI-8
338 a review properly so called would lie in civil cases but none in criminal;
but the review, when it lies, is only permitted on very narrow grounds. But in
this case the mere fact that a Judge is dead and so cannot review his judgment
does not affect the validity of the judgment which has already been delivered
and has become effective. For this reason there is a distinction between
judgments which have not been delivered and so have not become operative and
those which have. In the former case, the alteration is out of court. It is not
a judicial act. It is only part of a process of reaching a final conclusion;
also there is no formal public declaration of the Judges' mind in open court
and consequently there is no "judgment' which can be acted upon. But after
delivery the alteration cannot be made without notice to the parties and the
proceeding must take place in open court, and if there is no alteration there
is something which is final and conclusive and which can at once be acted upon.
The difference is this. In the one case, one cannot know, and it would be
against public policy to enquire, whether the draft of a judgment is the final
conclusion of the Judge or is only a tentative opinion subject to alteration
and change. In the second case, the Judge has publicly declared his mind and
cannot therefore change it without notice to the parties and without hearing
them afresh when that is necessary; and if there is no change the judgment
continues in force. By change we mean an alteration of the decision and not
merely the addition or subtraction of part of the reasoning.
Our conclusion is that the judgment which
Kidwa,i J. purported to deliver on 5th January, 1953, was not a valid judgment
because the other member of the Bench died before it could be delivered.
The appeal is allowed and the order of the
High Court which purports to be its judgment is set aside. As it is no longer
possible for the Bench which heard the appeal and the confirmation proceedings
to deliver a valid judgment 339 we send the case back to the High Court for
re-hearing and delivery of a proper judgment.
1953. November 23. BOSE J. The order for stay
dated the 25th May, 1953, has now expended itself. The death sentence cannot be
carried out as there is no valid decision of the appeal and no valid
confirmation. The position regarding that is as it was when the appeal was,
made to the High Court. The second and the third appellants will surrender to
their bail as they are now relegated to the position which they occupied when
the appeal was filed in the High Court.
Agent for the appellant : Naunit Lal.
Agent for the respondent: C. P. Lal.