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.

SUPREME COURT OF INDIA

(DR. B.S. CHAUHAN, J. CHELAMESWAR AND M.Y. EQBAL, JJ.)

KUSHALBHAI RATANBHAI ROHIT & ORS.
Petitioners
VERSUS
STATE OF GUJARAT
Respondent

Special Leave Petition (Crl.) No.453 of 2014-Decided on 6-5-2014.

ORDER

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.

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