Surendra Singh and Others vs The State of Uttar Pradesh

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 u/s 325, Indian Penal Code. Each was sentenced to three years' rigorous imprisonment and to fine Rs. 200.

All three appealed to the High Court at Allahabad (Lucknow Bench) and the appeal was heard on 11th 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 Kidwai, J., at Lucknow. He died on December, 1952, before the judge 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 confines 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 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 crystallise 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 Code of Criminal Procedure takes care of Courts subordinate to the High Court. Sections 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 (sic) situations: (1) for judgment(sic) pronounced at once as so (sic) has been heard: (2) for(sic) those which are written. The 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 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 Nand Ram (F.B.), The facts are not quite 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. 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 natures 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 comely 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 Section 99 and 108, CPC Code.

(sic) This is a Criminal Procedure Code does much the same thing on the criminal side as Section 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 Code of Criminal Procedure which provides that-

save as otherwise provided by this Code or by any other law for the time being in force or, in the case of 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 blurred nor left to inference and enjecture 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-can be curred; 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 done does not matter. In some Courts the judgment is delivered orally or read out, in some only the operative portion is 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(sic) (sic) at the time of pronouncement 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 bearing. Everything else up till then is done but of Court and is not intended to be the operative act which sets all the consequences which follow 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 pxnitentix, and indeed last minute alterations 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 at last minute change of mind on his part. If he hands in a draft and signs and indicates that he intends the to be the final expository of the views it can be a(sic)med that those are still his views at the moments 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 be would not have changed his mind if he is no longer in a position to do so. A Judges responsibility is heavy and when a man's life and liberty hang upon his decision nothing cannot be left to change 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 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 intended to (sic)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.

View similar to this were expressed by a Full Bench of the Calcutta High Court consisting of nine Judges in the year 1867 in Mahomad Ali v. Assadnnisea Bibee (1867) 9 W.R. 1. In that case, three of the seven Judges who constituted the Bench handed in signed judgments to the Registrar of the Court. 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 accept 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 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 opinion........(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 terms In our opinion, Jackson, J., expressed the law a right 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- to- day 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 retained from the Court cannot join in the judgment which is to be delivered to day and express their dissent from if" 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 no judgment. A judgment in the eye of the law is the learned 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 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 memorandums. sent in on the present occasion were a Judgment, there would be nine judgments to 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 ever thing 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 from the essence of the matter and if there is irregularity in carrying them out it is enable. Thus, if a judgment happens not to be signed and is inadvertency acted on and executed, the proceeding consequent on it would be valid because the judgment, if it cars be shown to have been validly delivered, would stand good despite defects in the mode it its subsequent authentication.

After the judgment has been delivered provision is made for review. One provision is_ that it can be freely altered on amended or even changed completely without further formality, except notice to be parties and a re-hearing on the point of change should that be necessary, provided it has not been signed. Another is that after signature re view 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 these case the mere fact that 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 that formes case, the alterations is out of Courts 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 of open court and consequently there is no "Judgment" which can be acted upon. Bat after, delivery the alteration cannot be made without notice to the parties and the proceedings 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 can not 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 Kidwai, J., purported to deliver on 5th January, 1953, was not 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 we send the case back to the High Court for re-hearing and delivery of a proper judgment.

Bose J. (November 23 1953)-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 bails as they are now relegated to the position which they occupied when the appeal was filed in the High Court.