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Recalling of Oral judgment – High court orally allowed the appeal saying that sanction is necessary but The order had been recalled on the ground that the court wanted to examine the issue further as to whether in the facts and circumstances of the case where the accused had been police constables, the offence could not be attributed to have been committed under the commission of their duty where sanction under Section 197 Cr.P.C. would be attracted – Apex court held that the court can do until it was signed and delivered = Kushalbhai Ratanbhai Rohit & Ors. …Petitioners Versus The State of Gujarat …Respondent= 2014 (May.Part) http://judis.nic.in/supremecourt/filename=41523

Recalling of Oral judgment – High court orally allowed the appeal saying that sanction is necessary but The order had been recalled  on  the  ground  that  the  court wanted to examine the issue further as to whether  in  the  facts  and circumstances  of  the  case  where  the  accused  had   been   police constables, the offence could not be attributed to have been committed under the commission of their duty where sanction  under  Section  197  Cr.P.C. would be attracted – Apex court held that the court can do until it was signed and delivered =

 

Shiva, accused absconded from the custody of  these  persons

      although in handcuffs.  Thus, a complaint was lodged in  this  respect

      by the seniormost person of the said escort party. =

 

 

The appeal was finally heard on 11.12.2013 and the  court

      took a view that sanction of the State Government under Section 197 of

      the Code of Criminal  Procedure,  1973  (hereinafter  referred  to  as

      “Cr.P.C.”) was necessarily required, and in view  thereof,  the  order

      was dictated in open court allowing the  appeal  on  technical  issue.

     

 However,  the  order  dictated  in  open  court  and  acquitting   the

      petitioners vide order dated 11.12.2013 was recalled by the court  suo

      moto vide order dated 27.12.2013 and directed the  appeal  to  be  re-

      heard.  

The order had been recalled  on  the  ground  that  the  court

      wanted to examine the issue further as to whether  in  the  facts  and

      circumstances  of  the  case  where  the  accused  had   been   police

      constables, the offence could not be attributed to have been committed

      under the commission of their duty where sanction  under  Section  197

      Cr.P.C. would be attracted.=

In Sangam Lal v. Rent Control and Eviction Officer, Allahabad  &

      Ors., AIR 1966 All. 221, while dealing with the rent  control  matter,

      the court came to the conclusion that until a judgment is  signed  and

      sealed after delivering in court, it is not a judgment and it  can  be

      changed or altered at any time before it is signed and sealed.=

 Thus,  from  the  above,  it  is   evident   that   a   Judge’s

      responsibility is very heavy, particularly, in a case  where  a  man’s

      life and liberty hang upon his decision nothing can be left to  chance

      or doubt or conjecture.  Therefore, one cannot assume, that the  Judge

      would not have changed his mind before the judgment become final.=

The  petition  is  devoid  of  any  merit  and  is  accordingly

      dismissed.

 2014 (May.Part) http://judis.nic.in/supremecourt/filename=41523

B.S. CHAUHAN, J. CHELAMESWAR, M.Y. EQBAL

Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Special Leave Petition (Crl.) No.453 of 2014

 
Kushalbhai Ratanbhai Rohit & Ors.
…Petitioners
Versus
The State of Gujarat …Respondent

 
O R D E R

 

 

1. This petition has been filed against the interim order dated
27.12.2013, passed by the High Court of Gujarat at Ahmedabad in
Criminal Appeal No.2012 of 2006.
2. Facts and circumstances giving rise to this petition are :
A. That an FIR C.R. No.60 of 2001 was registered at Amraiwadi
Police Station, Ahmedabad against one Mahalingam alias Shiva for the
offence punishable under the provisions of Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). Pursuant to
the said FIR, case commenced which was committed to the Sessions
Court, Bhadra, Ahmedabad and the trial commenced.
B. On 4.8.2003, Shiva, accused who was detained at Vadodara Central
Jail, was required to be taken to the Sessions Court at Bhadra,
Ahmedabad and for that purpose an escort was arranged, however, the
case was adjourned and the accused while going back was taken for a
cup of tea to the Tea stall outside the court compound. Subsequent
thereto, he expressed the desire to see his ailing mother and the
escort persons tried to find the auto-rickshaw but the escort persons
started nauseating and vomiting as some substance was allegedly had
been mixed up with tea by the relatives of the accused and it was at
that time Shiva, accused absconded from the custody of these persons
although in handcuffs. Thus, a complaint was lodged in this respect
by the seniormost person of the said escort party. In this regard,
Ist C.R. No.442 of 2003 was recorded for the offence punishable
under Sections 328, 222, 223, 224 and 114 of the Indian Penal Code
1860 (hereinafter referred to as ‘IPC’).
C. After the investigation, chargesheet was filed against the
escort personnel including the petitioners on 5.9.2005 and the
petitioners were found guilty for the offence punishable under Section
222 IPC vide judgment and order dated 9.11.2006 and the petitioner
no.1 was awarded 3 years’ RI and a fine of Rs.5,000/- and in default
thereto, to undergo simple imprisonment for one year. Petitioner
nos.2 and 3 were convicted under Section 222 IPC but they had been
awarded the sentence for a period of two years each and a fine of
Rs.2,000/-each, and in default thereto, to undergo simple imprisonment
for six months.
D. Aggrieved, the petitioners preferred Criminal Appeal No.2012 of
2006 before the High Court of Gujarat and during the pendency of the
appeal, the petitioners had been enlarged on bail vide order dated
22.11.2006. The appeal was finally heard on 11.12.2013 and the court
took a view that sanction of the State Government under Section 197 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as
“Cr.P.C.”) was necessarily required, and in view thereof, the order
was dictated in open court allowing the appeal on technical issue.
However, the order dictated in open court and acquitting the
petitioners vide order dated 11.12.2013 was recalled by the court suo
moto vide order dated 27.12.2013 and directed the appeal to be re-
heard. The order had been recalled on the ground that the court
wanted to examine the issue further as to whether in the facts and
circumstances of the case where the accused had been police
constables, the offence could not be attributed to have been committed
under the commission of their duty where sanction under Section 197
Cr.P.C. would be attracted.
Hence, this petition.
3. Heard Shri Fakhruddin, learned senior counsel for the
petitioners and Shri Anurag Ahluwalia, learned counsel for the
State and perused the record.
4. We do not find any forcible submission advanced on behalf of the
petitioners that once the order had been dictated in open court, the
order to review or recall is not permissible in view of the provisions
of Section 362 Cr.P.C. for the simple reason that Section 362 Cr.P.C.
puts an embargo to call, recall or review any judgment or order passed
in criminal case once it has been pronounced and signed. In the
instant case, admittedly, the order was dictated in the court, but had
not been signed.
5. In Mohan Singh v. King-Emperor 1943 ILR (Pat) 28, a similar
issue was examined wherein the facts had been that the judgment was
delivered by the High Court holding that the trial was without
jurisdiction and a direction was issued to release the appellant
therein. However, before the judgment could be typed and signed the
court discovered that the copy of the notification which had been
relied upon was an accurate copy and that the Special Judge had
jurisdiction in respect of the offence under which the appellant
therein had been convicted. Thereupon, the order directing the
release of the accused was recalled and the appeal was directed to be
heard de novo. When the matter came up for re-hearing, the objection
that the court did not have a power to recall the order and hear the
appeal de novo, was rejected.
6. In view of the provisions of Section 362 Cr.P.C. while deciding
the case, the Patna High Court relied upon the judgment of Calcutta
High Court in Amodini Dasee v. Darsan Ghose, 1911 ILR (Cal) 828 and
the judgment of Allahabad High Court in Emperor v. Pragmadho Singh,
1932 ILR (All.) 132. A similar view has been reiterated by the
Division Bench of the Bombay High Court in State of Bombay v. Geoffrey
Manners & Co., AIR 1951 Bom. 49. The Bombay High Court had taken the
view that unless the judgment is signed and sealed, it is not a
judgment in strict legal sense and therefore, in exceptional
circumstances, the order can be recalled and altered to a certain
extent.
7. In Sangam Lal v. Rent Control and Eviction Officer, Allahabad &
Ors., AIR 1966 All. 221, while dealing with the rent control matter,
the court came to the conclusion that until a judgment is signed and
sealed after delivering in court, it is not a judgment and it can be
changed or altered at any time before it is signed and sealed.
8. This Court has also dealt with the issue in Surendra Singh &
Ors. v. State of U.P., AIR 1954 SC 194 observing as under:
“Now up to the moment the judgment is delivered Judges have the
right to change their mind. There is a sort of ‘locus
paenitentiae’ 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 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 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
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 drawn upon him
before the delivery of judgment.”

 

9. Thus, from the above, it is evident that a Judge’s
responsibility is very heavy, particularly, in a case where a man’s
life and liberty hang upon his decision nothing can be left to chance
or doubt or conjecture. Therefore, one cannot assume, that the Judge
would not have changed his mind before the judgment become final.
10. In Iqbal Ismail Sodawala v. The State of Maharashtra & Ors., AIR
1974 SC 1880, the judgment in Surendra Singh (supra) referred to
hereinabove was considered in this case. In that case, criminal
appeal was heard by the Division Bench of the High Court, the judgment
was signed by both of them but it was delivered in court by one of
them after the death of the other. It was held that there was no
valid judgment and the case should be re-heard. This Court took the
view that the judgment is the final decision of the court intimated to
the parties and the world at large.
11. In view of the above, we are of the considered opinion that no
exception can be taken to the procedure adopted by the High Court in
the instant case.
12. The petition is devoid of any merit and is accordingly
dismissed.
……..…….……………………..J.
(Dr. B.S. CHAUHAN)

 
…….……………………………J.
(J. CHELAMESWAR)

 
…….……………………………J.
(M.Y. EQBAL)
New Delhi,
May 6, 2014

 

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