Supreme Court of India
KUSHALBHAI RATANBHAI ROHIT & ORS.versusTHE STATE OF GUJARAT
- Citation
- 2014 INSC 366
- Decided
- 6 May 2014
- Disposal
- Dismissed
Holding
A judgment or order that has not been signed and sealed is not final and may be recalled or altered, so the High Court's action did not violate Section 362 CrPC.
Summary
An FIR under the NDPS Act led to the arrest of a accused who escaped while being escorted by police constables. The constables were charged under IPC Section 222 and convicted, prompting them to file a criminal appeal. The Gujarat High Court, after dictating an acquitting order in open court but before signing it, recalled the order suo moto to re‑hear the appeal on the question of whether Section 197 of the CrPC required State sanction. The petitioners contended that once an order is dictated, it cannot be recalled under Section 362 CrPC. The Supreme Court held that a judgment or order is not final until it is signed and sealed, and therefore the High Court could lawfully recall and alter the undated order. Citing several precedents, the Court rejected the petitioners' argument and dismissed the Special Leave Petition.
Issues considered
- Whether a judgment or order dictated in open court but not yet signed and sealed can be recalled or altered under Section 362 of the Code of Criminal Procedure.
- Whether the Gujarat High Court erred in recalling its own undated order to re‑hear the appeal.
Legislation cited
Subjects
recall of judgmentSection 362 CrPCunsigned ordercriminal procedureSection 197 sanctionappellate jurisdictionjudgment finalitypublic policy
Judgment
[2014] 8 S.C.R. 743
KUSHALBHAI RATANBHAI ROHIT & ORS. A
v.
THE STATE OF GUJARAT
(Special Leave Petition (CRL.) No.453 of 2014)
MAY 6, 2014
B
[DR. B.S. CHAUHAN, J. CHELAMESWAR AND
M.Y. EQBAL, JJ.]
Judgments/Orders - Recall of - Change/alteration in
judgment before it is signed and sealed - Permissibility - C
Criminal case against petitioner-police constables•- Matter
came up before High Court in criminal appeal- High Court
took the view that sanction of the State Government uls. 197
CrPC was necessarily required, and in view thereof, the order
was dictated in open court allowing the appeal on technical D
issue - However, subsequently, the .order dictated in open
court and acquitting the petitioners was recalled by the court
suo moto vide and the appeal directed to be re-heard - Order
recalled on the ground that the court wanted to examine the
issue further as· to whether in the facts and circumstances of E
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 uls.197 Cr.P.C.
would be attracted - Held: No merit in the submission
advanced on behalf 'of the petitioners that once the order had F
been dictated in open court, the order to review or recall is
not permissible in view of the provisions of s.362 CrPC - s.362
CrPC puts an embargo to call, recall or review anyjudgment
or order passed in criminaj case once. it has been
pronounced and signed - In the instant case, admittedly, the G
1 order was dictated in the court, but had not been signed - A
Judge's responsibility is very heavy, particularly, in a case
i where a man's Ide and liberty hang upon his decision nothing
, can be left to chance or doubt or conjecture - One cannot,
743 H
744 SUPREME COURT REPORTS [2014] 8 S.C.R.
A therefore, assume, that the Judge would not have changed
his mind before the judgment become final - No exception
can be taken to the procedure adopted by the High Court in
the instant case - Penal Code, 1860 - s. 222 - Code of
Criminal Procedure, 1973 - s.362.
B
Sangam Lal v. Rent Control and Eviction Officer,
Allahabad & Ors. AIR 1966 All. 221; Surendra Singh & Ors.
v. State bf U.P. AIR 1954 SC 194: 1954 SCR 330 and Iqbal
Ismail Sodawala v. The State of Maharashtra & Ors. AIR 1974
SC 1880: 1975 (1) SCR 710 - referred to.
c
Mohan Singh v. King-Emperor 1943 ILR (Pat) 28;
Amodini Dasee v. Darsan· Ghose 1911 ILR (Cal) 828;
Emperor v. Pragmadho Singh 1932 ILR (All.) 132; State of
Bombay v. Geoffrey Manners & Co. AIR 1951 Born. 49 -
D referred to.
'
Case Law reference :
1943 ILR (Pat) 28 referred to Para 5
E 1911 ILR (Cal) 828 referred to Para 6
1932 ILR (All.) 132 referred to Para 6
AIR 1951 Born. 49 referred to Para 6
AIR 1966 All. 221 referred to Para 7
F
1954 SCR 330 referred to Para 8
1975 (1) SCR 710 referred to Para 10
CRIMINAL APPELLATE JURISDICTION: Special Leave
G Petition (Crl.) No.453 of 2014.
From the Judgment and Order dated 27.12.2013 of the
Gujarat High Court in Criminal Appeal No. 2012 of 2006.
H
KUSHALBHAI RATANBHAI ROHIT v. THE STATE OF 745
GUJARAT.
Fakhruddin, Kalap Raichura, Haresh Raichura for the A
Petitioners.
Anurag Ahluwalia, Prasant Ghai, Hernantika Wahi, Jesal
for the Respondent.
The Order of the Court was delivered B
ORDER
1. This petition has been filed against the interim order
dated 27.12.2013, passed by the High Court of Gujarat at C
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 o
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, E
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, ·Ahmadabad and for that purpose
an escort was arranged, however, the case was adjourned and F
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 G
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, 1st C.R. No.442 H
746 SUPREME COURT REPORTS {2014] 8 S.C.R.
A 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
8
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
C 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 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
E 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
F 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
G 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.
H
KUSHALBHAI RATANBHAI ROHIT v. THE STATE OF 747
GUJARAT
3. Heard Shri Fakhruddin, learned senjor counsel for the A
petitioners anctShri 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 B
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, C
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 D
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 E
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
1
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 F
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 G
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 Born. 49. The Bombay High Court had taken
the view that unless the judgment is signed and sealed, it is H
748 SUPREME COURT REPORTS [2014] 8 S.C.R.
A 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 therent
8
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.
c 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
D 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
E
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
F 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
G 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
am~st delivery.
H
KUSHALBHAI RATANBHAI ROHIT v. THE STATE OF 749
GUJARAT
But one cannot assume that he would not have changed A
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 B
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 fee/ it would be c
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
0
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 E
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 F
& 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 G
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.
H
750 SUPREME COURT REPORTS [2014] 8 S.C.R
A 11. In view of the above, we are of the considered opinior
that no exception can be taken to the procedure adopted b)
the High Court in the instant case.
12. The petition is devoid of any merit and is accordingly
dismissed.
8
Bibhuti Bhushan Bose S.L.P. dismissed.
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