{"id":113730,"date":"1953-11-16T00:00:00","date_gmt":"1953-11-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/surendra-singh-and-others-vs-the-state-of-uttar-pradesh-on-16-november-1953"},"modified":"2017-07-21T21:01:12","modified_gmt":"2017-07-21T15:31:12","slug":"surendra-singh-and-others-vs-the-state-of-uttar-pradesh-on-16-november-1953","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/surendra-singh-and-others-vs-the-state-of-uttar-pradesh-on-16-november-1953","title":{"rendered":"Surendra Singh And Others vs The State Of Uttar Pradesh on 16 November, 1953"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Surendra Singh And Others vs The State Of Uttar Pradesh on 16 November, 1953<\/div>\n
Equivalent citations: 1954 AIR 194, \t\t 1954 SCR 330<\/div>\n
Author: V Bose<\/div>\n
Bench: Bose, Vivian<\/div>\n
           PETITIONER:\nSURENDRA SINGH AND OTHERS\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF UTTAR PRADESH\n\nDATE OF JUDGMENT:\n16\/11\/1953\n\nBENCH:\nBOSE, VIVIAN\nBENCH:\nBOSE, VIVIAN\nMUKHERJEA, B.K.\nBHAGWATI, NATWARLAL H.\n\nCITATION:\n 1954 AIR  194\t\t  1954 SCR  330\n CITATOR INFO :\n F\t    1974 SC1880\t (10)\n RF\t    1988 SC 371\t (5)\n\n\nACT:\n Practice-Judgment-Case\t heard by two Judges-Judgment  signed\n by both-Death of one of them-Delivery by the other- Validity\n of  judgment Allahabad High Court Rules, 1952,\t Chap.\t VII,\n rr. 1-4.\n\n\n\nHEADNOTE:\nWhere  a  case was heard by a Bench of two  Judges  and\t the\njudgment was signed by both of them but it was delivered  in\ncourt  by  one of them after the death of the  other:  Held,\nthat there was no valid judgment and the case should be\t re-\nheard.\nA  judgment is the final decision of the court intimated  to\nthe parties and the world at large by formal  \"pronouncement\nor  \"delivery\"\tin  open  court\t and  until  a\tjudgment  is\ndelivered the judges have a right to change their mind.\nFirm Gokal Chand v. Firm Nand Ram (A.I.R. 1938 P.C. 292) and\nMahomed Akil v. Asadunnissa Bibee (9 W. R. 1 F.B.)  referred\nto.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 34  of
\n1953.\n<\/p>\n
Appeal\tfrom the Judgment and Order dated the  5th  January,
\n1953, of the High Court of Judicature at Allahabad  (Lucknow
\nBench), Lucknow (Kidwai and Bhargava JJ.) in Criminal Appeal
\nRegister No. 24 of 1952 and Capital Sentence Register No.  4
\nof 1952 arising out of the Judgment and Order dated the 19th
\nJanuary\t 1952, of the Court of the Sessions Judge,  Sitapur,
\nin Sessions Case No. 97 of 1951.\n<\/p>\n
Jai Gopal Sethi (K.  P. Gupta, with him) for the appellant.
\nG.C. Mathur and Onkar Nath Srivastava for the respondent.
\n1953.  November 16.  The Judgment of the Court was delivered
\nby
\nBOSE  J.We  have  three\t appellants  before  us.   All\twere
\nprosecuted  for\t the murder of one Babu\t Singh.\t  Of  these,
\nSurendra  Singh\t alone was convicted of the murder  and\t was
\nsentenced  to  death.  The other two  were  convicted  under
\nsection 225, Indian Penal Code.\t Each was sentenced
\n331<\/span>
\nto  three years’ rigorous imprisonment and to a fine of\t Rs.\n<\/p>\n
200.
\nAll  three appealed to the High Court at Allahabad  (Lucknow
\nBench) and the appeal was heard on Filth December, 1952,  by
\nKidwai\tand Bhargava JJ.  Judgment was reserved.  Before  it
\ncould be delivered Bhargava J. was transferred to Allahabad.
\nWhile there he dictated a, “judgment” purporting to do so on
\nbehalf\tof himself and his brother Judge, that is to say  it
\npurported to be a joint judgment : he used the pronoun\t“we”
\nand not “I”.  He signed every page of the “judgment” as well
\nas  at\tthe end but did not date it.  He then sent  this  to
\nKidwai\tJ.  at\tLucknow.  He died on  24th  December,  1962,
\nbefore\tthe “judgment” was delivered.  After his  death,  on
\n5th January, 1953, his brother Judge Kidwai J. purported  to
\ndeliver the “judgment” of the court.  He signed it and dated
\nit.   The  date\t he  placed on it  was\t5th  January,  1953,
\nBhargava  J.’s signature was still there and anyone  reading
\nthe  judgment and not knowing the facts would conclude\tthat
\nBhargava  J.  was a party to the delivery  on  5th  January,
\n1953.\tThe appeal was dismissed and the sentence  of  death
\nwas  confirmed.\t  The question is  whether  this  “judgment”
\ncould be validly delivered after the death of one of the two
\nJudges who heard the appeal.\n<\/p>\n
The arguments covered a wide range but we intend to  confine
\nourselves  to the facts of this case and only deal with\t the
\nnarrower issues which arise here.\n<\/p>\n
Delivery  of judgment is a solemn act which carries with  it
\nserious consequences for the person or persons involved.  In
\na  criminal  case  it often  means  the\t difference  between
\nfreedom\t and  jail, and when there is a\t conviction  with  a
\nsentence of imprisonment, it alters the status of a prisoner
\nfrom  an under-trial to that of a convict; also the term  of
\nhis  sentence starts from the moment judgment is  delivered.
\nIt  is\ttherefore necessary to know with  certainty  exactly
\nwhen  these  consequences start to take\t effect.   For\tthat
\nreason\trules have been drawn up to determine the manner  in
\nwhich and the time from when the decision is to take  effect
\nand crystal
\n332<\/span>
\nlise  into  an act which is thereafter final so far  as\t the
\ncourt delivering the judgment is concerned.
\nNow  these  rules  are not all the  same  though,  they\t are
\ndesigned to achieve the same result.  The Criminal Procedure
\nCode  takes  care of courts subordinate to the\tHigh  Court.
\nSection\t 366 and 424 deal with them.  The High\tCourts\thave
\npower to make their own rules.\tThe power is now  conferred,
\nor rather continued, under article 225 of the Constitution.
\nThe Allahabad High Court framed its present set of Rules  in
\n1952.  They came into force on the 15th of September in that
\nyear.\tWe are concerned with the following in\tChapter\t VII
\ndealing with the judgment and decree, namely rules 1.4.
\nThese  rules provide for four different situations: (1)\t for
\njudgments  which are pronounced at once as soon as the\tcase
\nhas  been heard; (2) for those which are pronounced on\tsome
\nfuture\tdate, (3) for judgments which are oral, and (4)\t for
\nthose  which  are written.  These rules use the\t word  “pro-
\nnounced” in some places and “delivered” in others.   Counsel
\ntried  to make capital out of this and said that a  judgment
\nhad  to be both “pronounced” and “delivered” and  that\tthey
\nwere two different things.\n<\/p>\n
We  do\tnot intend to construe these rules  too\t technically
\nbecause they are designed, as indeed are all rules, to\tfur-
\nther the ends of justice and must not be viewed too  narrow-
\nly;  nor do we desire to curtail the jurisdiction which\t the
\nPrivy  Council point out is inherent in courts to make\tgood
\ninherent defects caused by accidents such as death.  As this
\ndecision  of  the Judicial Committee was relied\t on  in\t the
\narguments we will quote the passage which is relevant  here.
\nIt  is at page 295 of Firm Gokal Chand v. Firm Nand  Ram(1).
\nThe facts are not the same as here because the judgment\t was
\nactually  delivered  in open court and both the\t judges\t who
\nconstituted the Bench were present and concurred in it.\t But
\nbefore it could be signed, one Judge went on leave.
\n(1) A.I.R. 1938 P.C. 292.\n<\/p>\n
333<\/span><\/p>\n
The  rules required the judgment to be signed and  dated  at
\nthe time that it was pronounced.  Their Lordships said:-
\n“The  rule  does not say that if its  requirements  are\t not
\ncomplied with the judgment shall be a nullity.\tSo startling
\na  result  would need clear and precise words.\t Indeed\t the
\nrule does not even state any definite time in which it is to
\nbe  fulfilled.\t The time is left to be defined by  what  is
\nreasonable.   The rule from its very nature is not  intended
\nto  affect  the\t rights of parties to  a  judgment.   It  is
\nintended  to secure certainty in the ascertainment  of\twhat
\nthe judgment was.  It is a rule which Judges are required to
\ncomply with for that object.  No doubt in practice Judges do
\nso  comply,  as it is their duty to do.\t But  accidents\t may
\nhappen.\t A Judge may die after giving judgment but before he
\nhas had a reasonable opportunity to sign it.  The court must
\nhave  inherent\tjurisdiction to supply such a  defect.\t The
\ncase  of  a Judge who has gone on leave before\tsigning\t the
\njudgment  may  call  for  more\tcomment,  but  even  so\t the
\nconvenience of the court and the interest of litigants\tmust
\nprevail.   The\tdefect is merely an  irregularity.   But  in
\ntruth the difficulty is disposed of by sections 99 and\t108,
\nCivil Procedure Code.”\n<\/p>\n
That was a civil case.\tThis is a criminal one.\t But section
\n537 of the Criminal Procedure Code does much the same  thing
\non the criminal side as sections 99 and 108 do on the civil.
\nThe  principle underlying them is the same.  But even  after
\nevery  allowance  is made and every effort  taken  to  avoid
\nundue  technicality  the question still remains\t what  is  a
\njudgment,  for it is the “judgment” which decides  the\tcase
\nand affects the rights and liberties of the parties; that is
\nthe  core of the matter and, as the Privy Council  say,\t the
\nwhole  purpose of these rules is to secure certainty in\t the
\nascertainment  of what the judgment was.  The  question\t as-
\nsumes  more importance than ever in a criminal case  because
\nof section 369 of the Criminal Procedure Code which provides
\nthat
\n334<\/span>
\n“Save as otherwise provided by this Code or by any other law
\nfor the time being in force or, in the case of a High Court,
\nby the Letters Patent or other instrument constituting\tsuch
\nHigh Court, no court, when it has signed its judgment, shall
\nalter  or  review  the same except  to\tcorrect\t a  clerical
\nerror.”\n<\/p>\n
In  our\t opinion,  a judgment within the  meaning  of  these
\nsections is the final decision of the court intimated to the
\nparties and to the world at large by formal  “pronouncement”
\nor  “delivery”\tin open court.\tIt is a judicial  act  which
\nmust  be performed in a judicial way.  Small  irregularities
\nin  the manner of pronouncement or the mode of\tdelivery  do
\nnot  matter but the substance of the thing must be  there  :
\nthat  can neither be bluffed nor left to inference and\tcon-
\njecture\t nor  can it be vague.\tAll the rest the  manner  in
\nwhich  it  is to be recorded, the way in which it is  to  be
\nauthenticated the signing and the sealing, all the rules de-
\nsigned\tto secure certainty about its content and  matter@an
\nbe  cured; but not the hard core, namely the formal  intima-
\ntion of the decision and its contents formally declared in a
\njudicial way in open court.  The exact way in which this  is
\nclone  does  not  matter.  In some courts  the\tjudgment  is
\ndelivered  orally  or read out, in some only  the  operative
\nportion is pronounced, in some the judgment is merely signed
\nafter  giving notice to the parties and laying the draft  on
\nthe table for a given number of days for inspection.\n<\/p>\n
     An\t important  point therefore arises.  It\t is  evident
\nthat  the decision which is so pronounced or intimated\tmust
\nbe  a declaration of the mind of the court as it is  at\t the
\ntime  of  pronouncement.  We lay no stress on  the  mode  or
\nmanner of delivery, as that is not of the essence, except to
\nsay  that it must be done in a judicial way in\topen  court.
\nBut,  however,\tit is done it must be an expression  of\t the
\nmind  of  the court at the time of delivery.   We  say\tthis
\nbecause that is the first judicial act touching the judgment
\nwhich the court performs after the hearing.  Everything else
\nup till then is done out of court and is not intended to  be
\nthe  operative\tact which sets all  the\t consequences  which
\nfollow
\n335<\/span>
\non  the judgment in motion.  Judges may, and often do,\tdis-
\ncuss  the  matter  among themselves and\t reach\ta  tentative
\nconclusion.  That is not their judgment.  They may write and
\nexchange  drafts.  Those are not the judgments either,\thow-
\never heavily and often they may have been signed.  The final
\noperative  act\tis that which is formally declared  in\topen
\ncourt with the intention of making it the operative decision
\nof the court.  That is what constitutes the “judgment”.
\nNow  up to the moment the judgment is delivered Judges\thave
\nthe  right to change their mind.  There is a sort of   locus
\npaniteniea, and indeed last minute alterations sometimes  do
\noccur.\t Therefore, however, much a draft judgment may\thave
\nbeen  signed  beforehand,  it is nothing but  a\t draft\ttill
\nformally delivered as the judgment of the court.  Only\tthen
\ndoes it crystallise into a full fledged judgment and  become
\noperative.   It\t follows that the Judge who  “delivers”\t the
\njudgment,  or causes it to be delivered by a brother  Judge,
\nmust be in existence as a member of the court at the  moment
\nof delivery so that he can, if necessary, stop delivery\t and
\nsay that he has changed his mind.  There is no need for\t him
\nto  be\tphysically  present  in court  but  he\tmust  be  in
\nexistence  as a member of the court and be in a position  to
\nstop  delivery and effect an alteration should there be\t any
\nlast  minute change of mind on his part.  If he hands  in  a
\ndraft and signs it and indicates that he intends that to  be
\nthe  final  expository of his views it can be  assumed\tthat
\nthose are still his views at the moment of delivery if he is
\nalive  and  in a position to change his mind  but  takes  no
\nsteps  to  arrest delivery.  But one cannot assume  that  he
\nwould  not  have changed his mind if he is no  longer  in  a
\nposition  to do so.  A Judge’s responsibility is  heavy\t and
\nwhen a man’s life and liberty hang upon his decision nothing
\ncan  be\t left  to chance or doubt  or  conjecture;  also,  a
\nquestion  of  public.  policy  is  involved.   As  we\thave
\nindicated,  it is frequently the practice to send  a  draft,
\nsometimes a signed draft, to a brother Judge who also  heard
\nthe  case.  This may be merely for his information,  or\t for
\nconsideration and criticism.  The mere signing of the
\n336<\/span>
\ndraft does not necessarily indicate a closed mind.  We\tfeel
\nit would be against public policy to leave the door open for
\nan investigation whether a draft sent by a Judge was indend-
\ned  to embody his final and unalterable opinion or was\tonly
\nintended  to  be a tentative draft sent\t with  an  unwritten
\nunderstanding  that  he is free to change  his\tmind  should
\nfresh light dawn upon him before the delivery of judgment.
\n   Views  similar to this were expressed by a Full Bench  of
\nthe  Calcutta  High Court consisting of nine Judges  in\t the
\nyear 1867 in Mahomed Akil v. Asadunnissa Bibee(1).  In\tthat
\ncase,  three of the seven Judges who constituted  the  Bench
\nhanded\tin signed judgments to the Registrar of\t the  court.
\nBefore the judgment could be delivered, two of them  retired
\nand  one died.\tA Full Bench of nine Judges was convened  to
\nconsider  whether the drafts of those three Judges could  be
\naccepted as judgments of the court.  Seton-Kerr J., who\t had
\nheard the case along with them, said–\n<\/p>\n
     “Certainly as far as I can recollect, they appeared  to
\nhave  fully made up their minds on a subject which they\t had
\nvery  seriously considered, and on which they  had  abundant
\nopportunities  of  forming  a final  determination.   I\t am,
\nhowever. not prepared to say that they might not on  further
\nconsideration have changed their opinions…” (p. 13).
\n   Despite  this, all nine Judges were unanimous in  holding
\nthat those three opinions could not be regarded as judgments
\nin the formal sense of the term.  In our opinion, Jackson J.
\nexpressed the law aright in these words:-\n<\/p>\n
   “I  have however always understood that it was  necessary
\nin  strict practice that judgments should be  delivered\t and
\npronounced in open court.  Clearly, we are met today for the
\nfirst  and only time to give judgment in these appeals;\t and
\nit appears to me, beyond question, that Judges who have died
\nor have retired from the court cannot join in the
\n(1)  9 W.R.I. (F.B.)
\n\t\t\t    337<\/span>
\njudgment  which is to be delivered today, and express  their
\ndissent from it.” (p. 5).\n<\/p>\n
Peacock C.J. pointed out at page 30:\n<\/p>\n
“The mere arguments and expressions of opinion of individual
\nJudges, who compose a court, are not judgments.\t A  judgment
\nin  the\t eye of the law is the final decision of  the  whole
\ncourt.\t It is not because there are nine Judges that  there
\nare nine judgments.  When each of the several Judges of whom
\na simple court is composed separately expresses his  opinion
\nwhen  they  are\t all  assembled,  there\t is  still  but\t one
\njudgment,  which  is the foundation for one decree.   If  it
\nwere otherwise, and if each of the memoranda sent in on\t the
\npresent\t occasion  were\t a judgment,  there  would  be\tnine
\njudgments  in  one case, some deciding one  thing  and\tsome
\nanother,  and  each  Judge  would have\tto  review  his\t own
\njudgment separately, if a review should be applied for.\t ”
\n   We  do  not\tagree with everything which  fell  from\t the
\nlearned Chief Justice and the other Judges in that case but,
\nin  our\t opinion, the passages given above embody  the\ttrue
\nrule and succinctly explain the reasons for it.
\n    As\tsoon as the judgment is delivered, that becomes\t the
\noperative pronouncement of the court.  The law then provides
\nfor  the manner in which it is to be authenticated and\tmade
\ncertain.   The rules regarding this differ but they  do\t not
\nform the essence of the matter and if there is\tirregularity
\nin  carrying  them out it is curable.  Thus, if\t a  judgment
\nhappens\t not to be signed and is inadvertently acted on\t and
\nexecuted,  the proceedings consequent on it would  be  valid
\nbecause\t the  judgment,\t if it can be  shown  to  have\tbeen
\nvalidly\t delivered, would stand good despite defects in\t the
\nmode of its subsequent authentication.\n<\/p>\n
 After the judgment has been delivered provision is made for
\nreview.\t  One provision is that it can be freely altered  or
\namended\t  or   even  changed  completely   without   further
\nformality,  except notice to the parties and a rehearing  on
\nthe  point of change should that be necessary,\tprovided  it
\nhas  not  been\tsigned.\t Another  is  that  after  signature
\nL\/B(D)2SCI-8
\n338<\/span>
\na  review  properly so called would lie in civil  cases\t but
\nnone  in  criminal; but the review, when it  lies,  is\tonly
\npermitted on very narrow grounds.  But in this case the mere
\nfact that a Judge is dead and so cannot review his  judgment
\ndoes  not  affect  the validity of the\tjudgment  which\t has
\nalready\t been delivered and has become effective.  For\tthis
\nreason\tthere is a distinction between judgments which\thave
\nnot  been  delivered and so have not  become  operative\t and
\nthose which have.  In the former case, the alteration is out
\nof  court.  It is not a judicial act.  It is only part of  a
\nprocess\t of  reaching a final conclusion; also there  is  no
\nformal public declaration of the Judges’ mind in open  court
\nand  consequently there is no “judgment’ which can be  acted
\nupon.\tBut  after delivery the alteration  cannot  be\tmade
\nwithout\t notice to the parties and the proceeding must\ttake
\nplace in open court, and if there is no alteration there  is
\nsomething  which  is final and conclusive and which  can  at
\nonce  be  acted upon.  The difference is this.\tIn  the\t one
\ncase, one cannot know, and it would be against public policy
\nto  enquire,  whether the draft of a judgment is  the  final
\nconclusion  of\tthe  Judge or is only  a  tentative  opinion
\nsubject\t to alteration and change.  In the second case,\t the
\nJudge  has publicly declared his mind and  cannot  therefore
\nchange it without notice to the parties and without  hearing
\nthem  afresh  when  that is necessary; and if  there  is  no
\nchange\tthe judgment continues in force.  By change we\tmean
\nan alteration of the decision and not merely the addition or
\nsubtraction of part of the reasoning.\n<\/p>\n
Our  conclusion\t is  that  the\tjudgment  which\t Kidwa,i  J.
\npurported  to deliver on 5th January, 1953, was not a  valid
\njudgment  because the other member of the Bench died  before
\nit could be delivered.\n<\/p>\n
The appeal is allowed and the order of the High Court  which
\npurports  to  be  its judgment is set aside.  As  it  is  no
\nlonger possible for the Bench which heard the appeal and the
\nconfirmation proceedings to deliver a valid judgment
\n339<\/span>
\nwe  send the case back to the High Court for re-hearing\t and
\ndelivery of a proper judgment.\n<\/p>\n
1953.\tNovember  23.  BOSE J.The order for stay  dated\t the
\n25th May, 1953, has now expended itself.  The death sentence
\ncannot\tbe carried out as there is no valid decision of\t the
\nappeal\tand no valid confirmation.  The\t position  regarding
\nthat  is  as it was when the appeal was, made  to  the\tHigh
\nCourt.\t The second and the third appellants will  surrender
\nto  their  bail as they are now relegated  to  the  position
\nwhich  they occupied when the appeal was filed in  the\tHigh
\nCourt.\n<\/p>\n
Appeal allowed.\n<\/p>\n
Agent for the appellant :    Naunit Lal.\nAgent for the respondent: C. P. Lal.\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Surendra Singh And Others vs The State Of Uttar Pradesh on 16 November, 1953 Equivalent citations: 1954 AIR 194, 1954 SCR 330 Author: V Bose Bench: Bose, Vivian PETITIONER: SURENDRA SINGH AND OTHERS Vs. RESPONDENT: THE STATE OF UTTAR PRADESH DATE OF JUDGMENT: 16\/11\/1953 BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN MUKHERJEA, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-113730","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSurendra Singh And Others vs The State Of Uttar Pradesh on 16 November, 1953 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/surendra-singh-and-others-vs-the-state-of-uttar-pradesh-on-16-november-1953\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Surendra Singh And Others vs The State Of Uttar Pradesh on 16 November, 1953 - 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