Legality Of Oral Order Pronounced In Court
A Bench of Apex Court comprising of Justices B.S. Chauhan, J. Chelameswar and M.Y. Eqbal, in Kushalbhai Ratanbhai Rohit & Ors v. The State of Gujarat (SLP (Crl.) No.453 of 2014),took a view that Order can be recalled and altered even if it was dictated in open Court.
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”
In plethora of rulings , it has been consistently being held that
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 lise into an act which is thereafter final so far as the court delivering the judgment is concerned.
In Kushalbhai supra, the Court heavily relied upon its Judgment in Surendra Singh & Ors. v. State of U.P-1954 AIR 194, 1954 SCR 330 which observed that;
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-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 and say that he has changed his mind
It further held that
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 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.)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 mode of its subsequent authentication.