iminal 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 the appellant
GC Mathur and Onkar Nath Srivastava for the respondent
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 332 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 14
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 pro nounced 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 fur ther the ends of justice and must not be viewed too narrow ly 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 vs Firm Nand Ram1
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 AIR 1938 PC 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 as sumes 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 con jecture 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 de signed to secure certainty about its content and matteran be cured but not the hard core namely the formal intima tion 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 dis cuss 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 how ever 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 indend ed 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 vs Asadunnissa Bibee1
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 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 WRI FB 337 judgment which is to be delivered today and express their dissent from it p 5
Peacock CJ 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 LBD2SCI 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 Kidwai 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
November 23
BOSE JThe 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
Appeal allowed
Agent for the appellant  Naunit Lal


Summary:
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 re heard
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 vs Firm Nand Ram AIR and Mahomed Akil vs Asadunnissa Bibee FB referred to