|DATE:||(Date of pronouncement)|
|DATE:||May 14, 2014 (Date of publication)|
|Click here to download the judgement (kushalbhai_recall_order.pdf)|
Despite pronouncement of verdict in open court & signing of draft judgement, Judge entitled to alter verdict until judgement is signed & sealed
In a case relating to the prosecution of police personnel for alleged dereliction of duty, the High Court dictated an order in open Court in which it held that in the absence of sanction of the State Government u/s 197 of the CrPC, the prosecution was not permissible and the Petitioner had to be acquitted. However, later, the said order was recalled by the court suo moto on the ground that the issue required to be examined further. The Petitioner challenged the order of recall on the ground that once the order had been dictated in open court, a review or recall is not permissible in view of s. 362 CrP.C which provides that a judgment or order passed in a criminal case cannot be reviewed or recalled once it has been pronounced and signed. HELD by the Supreme Court dismissing the appeal:
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.