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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

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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  

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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  

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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.

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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  

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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   

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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.

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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)   

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New Delhi, May 6, 2014

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