http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: SURENDRA SINGH AND OTHERS

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 16/11/1953

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN MUKHERJEA, B.K. BHAGWATI, NATWARLAL H.

CITATION:  1954 AIR  194            1954 SCR  330  CITATOR INFO :  F          1974 SC1880  (10)  RF         1988 SC 371  (5)

ACT:  Practice-Judgment-Case  heard by two Judges-Judgment  signed  by both-Death of one of them-Delivery by the other- Validity  of  judgment Allahabad High Court Rules, 1952,  Chap.   VII,  rr. 1-4.

HEADNOTE: 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 v. Firm Nand Ram (A.I.R. 1938 P.C. 292) and Mahomed Akil v. Asadunnissa Bibee (9 W. R. 1 F.B.)  referred to.

JUDGMENT: 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 the appellant. G.C. Mathur and Onkar Nath Srivastava for the respondent. 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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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 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  "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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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 v. Firm Nand  Ram(1). 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  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-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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  matter@an 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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 v. Asadunnissa Bibee(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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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. Appeal allowed. Agent for the appellant :    Naunit Lal. Agent for the respondent: C. P. Lal.