K.A. Rehman vs The State

Jayanta Kumar Biswas, J.—The petitioner in this CRR under s. 397 read with s. 401 of the Code of Criminal Procedure, 1973 dated September 19, 2012 is aggrieved by an order of the Additional Sessions Judge, A & N Islands, Port Blair dated September 13, 2012 in SC No. 23 of 2010 (ST No. 26 of 2012) under s. 308 IPC. He is the accused in the trial. The order of the Additional Sessions Judge dated September 13, 2012 is quoted below:-

Accused on CB is absent by petition. Ld. Lawyers of both sides are present. As per earlier order 31.08.2012 was for delivery of judgment and accordingly the judgment was ready but on that day accused remained absent and his Ld. Lawyer wanted time. Thus judgment could not deliver on that day and then it was signed and sealed and kept in cover with the record. Today is also fixed for delivery of judgment but accused is absent and his Ld. Lawyer is wanted time on the ground of his absence. Heard both sides Ld. Addl. PP submits that this case became ready more than one year back and it is being dragged. I find that accused has become absent on regular basis and despite direction on surety he has not become available. Already many adjournments were allowed in the meantime. It appears that surety was failed to bring the accused and W/A is necessary. Accordingly prayer for further time is rejected.

Issue W/A against accused fixing 25.09.2012 for E/R of W/A. The judgment as already sealed and signed as mentioned above shall remain in safe custody in cover, to date for delivery of judgment.

In view of the provisions of s. 353 of the Code of Criminal Procedure, 1973 the Additional Sessions Judge was under an obligation to pronounce his judgment he intended to have pronounced in the trial immediately after the termination of the trial or at some subsequent time of which notice was to be given to the parties or their advocates.

The orders dated July 2, 2012, July 9, 2012, July 18, 2012 and August 10, 2012 passed by the Additional Sessions Judge in the trial reveal that until August 10, 2012 he had permitted the petitioner to submit his written argument, though from as back as July 2, 2012 he had started fixing next date "for delivery of judgment." It is to be noted that while he was fixing the next dates "for delivery of judgment," he was at once permitting the petitioner to file his written argument. It is only in the order dated August 10, 2012 fixing August 24, 2012 for judgment that he did not say anything regarding written argument. Hence it can be said that the trial terminated on August 10, 2012.

It appears from the orders passed by the Additional Sessions Judge on August 24, 2012, August 31, 2012, September 4, 2012, September 7, 2012 and September 12, 2012 that he intended to have pronounced his judgment that was ready for pronouncement as back as August 24, 2012; but that for the reasons stated in the orders it was not pronounced. Under the circumstances, being under order of transfer he passed the last order in the trial on September 13, 2012, questioning which this CRR has been filed.

Ms. Nag appearing for the petitioner has submitted that in view of the provisions of s. 353 of the Code of Criminal Procedure, 1973, the Additional Sessions Judge passing the impugned order was not competent to order that a judgment prepared, signed, sealed and kept in a cover by him should "remain in safe custody," presumably, for pronouncement and dating by his successor in office.

Mr. Mandal appearing for the State has submitted that in view of the provisions of sub-s.(7) of s. 353, the Additional Sessions Judge passing the impugned order was competent to order that a judgment prepared, signed, sealed and kept by him in a cover that he put in the records of the case should "remain in safe custody," presumably, for pronouncement and dating by his successor in office. He has relied on AIR 1939 21 (Lahore)

I do not find any merit in the argument that the provisions of sub-s.(7) of s. 353 of the Code of Criminal Procedure, 1973 empowered the Additional Sessions Judge to pass the impugned order that the judgment in the trial prepared, signed, sealed and kept in a cover by him should "remain in safe custody," presumably, for pronouncement and dating by his successor in office. Sub-section (7) of s. 353 is quoted below:-

(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.

The provisions of sub-s.(7) of s. 353 of the Code of Criminal Procedure, 1973 would have been relevant only if the Additional Sessions Judge had pronounced and dated his judgment he intended to have pronounced in the trial on any date between August 24, 2012 and September 13, 2012, even in the absence of the petitioner or his advocate. Admittedly, he did not pronounce and date his judgement.

Ms. Nag and Mr. Mandal both have considered the Supreme Court decision in Surendra Singh and Others Vs. The State of Uttar Pradesh, I pointed out to them.

In Surendra Singh and Others Vs. The State of Uttar Pradesh, the Supreme Court said that delivery of judgment is a solemn act which carries with it serious consequences for the person or persons involved; and that in a criminal case it often means the difference between freedom and jail; for when there is a conviction with a sentence of imprisonment, it alters the status of a convict and the term of his sentence starts from the moment the judgment is delivered.

In compliance with the provisions of s. 353 of the Code of Criminal Procedure, 1973, the Additional Sessions Judge passing the impugned order was required to pronounce his judgment in the trial in open Court and at once to date, sign and seal his judgement. Instead of doing that he prepared, signed and sealed his judgment and kept it in a cover that he again put in the records of the trial, presumably, for pronouncement as his judgment in the trial by his successor in office.

The judgment prepared, signed, sealed and kept in a cover by the Additional Sessions Judge did not acquire the status of his judgment in the trial; for it would have acquired the status only if it had been intimated to the parties and to the world at large by formal pronouncement in open Court in a judicial way; that was not done. Hence it was nothing more than his draft judgment in the trial kept to himself entitling him to alter it until it was made known to the parties and the world at large by its formal pronouncement in open Court in a judicial way.

Therefore, the question is whether the judgment prepared, signed, sealed and kept in a cover by the Additional Sessions Judge in the records of the trial will be his judgment pronounced in the trial, if it is formally pronounced in open Court in a judicial way by his successor in office.

The decision in AIR 1939 21 (Lahore) relied on by Mr. Mandal, neither answers the question nor is relevant. In that case the Criminal Court concerned delivered the judgment in the trial in the absence of the accused and his pleader; and referring to the provisions of sub-s.(3) of s. 366 of the Code of Criminal Procedure, 1898, similar to the ones of sub-s.(7) of s. 353 of the Code of Criminal Procedure, 1973, the High Court held that the absence did not invalidate the judgement.

In my opinion, here the answer to the question must be in the negative; for even if the Additional Sessions Judge can still stop his successor in office from pronouncing the judgment he prepared, signed, sealed and kept in a cover that he put in the records of the trial, but after stopping the pronouncement he, however, cannot alter it and pronounce the altered judgment in the trial, because he is no longer a member of the Court of Session, A & N Islands. And, in my opinion, in view of Surendra Singh''s ratio, this is the whole test for deciding the question.

The ratio of Surendra Singh is evident from what their Lordships said (in para. 12 of the report):-

Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of locus poenitentiae, and indeed last minute alternations often 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....

I am, therefore, of the view that the Additional Sessions Judge was not empowered to pass the impugned order that his judgment in the trial prepared, signed, sealed and kept in a cover that was put by him in the records of the trial should "remain in safe custody," presumably, for pronouncement and dating by his successor in office. The order is vitiated by an incurable error of jurisdiction.

Since the Additional Sessions Judge who passed the order impugned in the CRR is no longer available to pronounce his judgment in the trial, the judgment in the trial is now to be pronounced by the Criminal Court concerned, and it is undoubtedly under an obligation to hear the arguments afresh on the basis of the evidence already taken down in the trial. For these reasons, I allow the CRR, set aside the impugned order and order that the Criminal Court concerned shall pronounce the judgment in the trial according to the provisions of s. 353 of the Code of Criminal Procedure, 1973 after hearing the arguments afresh. Certified xerox.