Public Interest Litigation No.10 of 2005,Writ Petition No.3004 of 2004

20th December, 2005

Petitioner Counsel: Mr. K. K. SINGHVI,Mr. C. J. SAWANT,Ms. TANU MEHTA-TIWARI,Ms. APARNA SHINDE
Respondent Counsel: Mr. R. K. SAROJ,S. V. PITRE,Mr. SHRIHARI ANEY,Mr. C. S. BALSARA,Mr. B. H. ANTIA,Mr. H. N. VAKIL,Mr. D. D. MEHTA,M/s. Mulla & Mulla

Cases Cited:
Surendra Singh Vs. State of Uttar Pradesh, AIR 1954 SC 194 [Para 3,4]
Firm Gokal Chand-Jagan Nath Vs. Firm Nand Ram Das-Atma Ram, AIR 1938 PC 292 [Para 9]
State of U.P. Vs. Jai Bir Singh, 2005 AIR SCW 2773 [Para 10]
Bangalore Water Supply & Sewerage Board Vs. A. Rajappa, (1978)2 SCC 213 [Para 11]
Vinod Kumar Singh Vs. Banaras Hindu University, (1988)1 SCC 80 [Para 13]

JUDGMENT

JUDGMENT :- The above matter was argued before the Division Bench of the learned Chief Justice Mr. Justice Dalveer Bhandari (as His Lordship then was) and me. Upon conclusion of the arguments in the above matter, we reserved the judgment and order. The same was not pronounced by us. I thereafter prepared the judgment and forwarded a draft thereof to the learned Chief Justice. The learned Chief Justice signed the judgment in New Delhi on 27th October, 2005 when his Lordship was still the Chief Justice of this Court. On the next day His Lordship was elevated as a Judge of the Supreme Court. By the time the signed copy of the draft judgment was forwarded to me, His Lordship was elevated as a Judge of the Hon'ble Supreme Court of India. Thus, by the time the judgment and order could have been pronounced by me, His Lordship had ceased to be a Judge of this Court.

2. The question is whether in these circumstances I am entitled to pronounce the judgment. Mr. K. K. Singhvi, the learned Senior Counsel appearing on behalf of the Petitioners submits I should pronounce the judgment. Mr. Aney, the learned Senior Counsel appearing on behalf of Respondent No.4 submits that I am not entitled to pronounce the judgment. I have answered the question in the negative.

3. This aspect was argued before me in chambers on more than one occasion. The matter stands covered by a judgment of the Supreme Court in the case of Surendra Singh & Ors. Vs. State of Uttar Pradesh, AIR 1954 Supreme Court 194.

4. In Surendra Singh's case (Supra), the Appeals were heard by a Division Bench of the High Court on 11th December, 1952. As in the present case, the judgment was reserved but before it could be delivered, one of the learned Judges was transferred to Allahabad. While there, he dictated the judgment on behalf of himself and his brother Judge, and signed the same. He then sent the judgment to his brother Judge at Lucknow. He died on 24th December, 1952 before the judgment was delivered. After his death, his brother Judge purported to deliver the judgment of the Court, signed the same and dated it 15th January, 1953 i.e. the date on which he signed it. The Appeals were dismissed and the sentence of death was confirmed. The question before the Supreme Court was whether this judgment could have been validly delivered after the death of one of the Judges who heard the Appeal.

5. Paragraphs 9, 10, 11 and 12 of the judgment read as under :

"(9) That was a civil case. This is a criminal one. But Section 537 of the Criminal Procedure Code does much the same thing on the criminal side as sections 99 and 108 do on the civil. The principle underlying them is the same. But even after every allowance is made and every effort taken to avoid undue technicality the question still remains what is a judgment for it is the "judgment" which decides the case and affects the rights and liberties of the parties; that is the core of the matter and, as the Privy Council say, the whole purpose of these rules is to secure certainty in the ascertainment of what the judgment was. The question assumes more importance than ever in a criminal case because of section 369 of the Criminal Procedure Code which provides that-

"save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court, by the Letters Patent or other instrument constituting such High Court, no Court, when it has signed its judgment, shall alter or review the same except to correct a clerical error."

(10) In our opinion, a judgment within the meaning of these sections is the final decision of the Court intimated to the parties and to the world at large by formal "pronouncement" or "delivery" in open Court. It is a judicial act which must be performed in a judicial way. Small irregularities in the manner of pronouncement or the mode of delivery do not matter but the substance of the thing must be there: that can neither be blurred nor left to inference and conjecture nor can it be vague. All the rest - the manner in which it is to be recorded, the way in which it is to be authenticated, the signing and the sealing, all the rules designed to secure certainty about its content and matter - can be cured; but not the hard core, namely, the formal intimation of the decision and its contents formally declared in a judicial way in open Court. The exact way in which this is done does not matter. In some Courts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving notice to the parties and laying the draft on the table for a given number of days for inspection.

(11) An important point therefore arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. We lay no stress on the mode or manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open Court. But however it is done it must be an expression of the mind of the Court at the time of delivery. We say this because that is the first judicial act touching the judgment which the Court performs after the hearing. Everything else up till then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open Court with the intention of making it the operative decision of the Court. That is what constitutes the "judgment".

(12) 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 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." (emphasis supplied)

6. That the judgment covers this situation is conceded by Mr. K. K. Singhvi. Mr. Singhvi however sought to distinguish the same on two grounds. Firstly, he submitted that the judgment was delivered in a matter decided under the Criminal Procedure Code whereas, the present matter is a civil litigation. Secondly, he submitted that the present case is one under Article 226 of the Constitution of India and that therefore I ought not to consider myself bound by the judgment of the Supreme Court.

7. I am unable to agree with Mr. Singhvi. In my view, the aforesaid observations of the Supreme Court are not limited to matters under the Criminal Procedure Code or the Indian Penal Code. They apply equally to civil cases. There is nothing in the judgment that limits its scope to any particular category of proceedings.

8. Had we pronounced the order in the matter in open Court, the entire situation may have been different. The authorities suggest that in such circumstances, I may have been entitled to furnish reasons and pronounce the judgment.

9. Mr. Singhvi relied upon the judgment of the Privy Council in Firm Gokal Chand-Jagan Nath Vs. Firm Nand Ram Das-Atma Ram, AIR 1938 Privy Council 292, in support of his submission that I am entitled to pronounce the judgment. Indeed, in Surendra Singh's case, the Supreme Court had considered and distinguished the judgment of the Privy Council.

In the case before the Privy Council, the judgment was actually delivered in open Court and both the Judges who constituted the Bench were present and concurred in it. Before the judgment could be signed, one of the Judges went on leave. It it pertinent to note however that when the judgment was pronounced, both the learned Judges continued to be Judges of the High Court. The situation before me is entirely different for the judgment was reserved by us.

10. Mr. Singhvi relied upon paragraphs 13 and 14 of the judgment of the Supreme Court in State of U.P. Vs. Jai Bir Singh, 2005 AIR SCW 2773, which read as under :

"13. Since Beg, C.J. was to retire on 22-2-1978, the Bench delivered the judgment on 21-2-1978 with its conclusion that the appeal should be dismissed. The above conclusion was unanimous but the three Hon'ble Judges namely Chandrachud, J. on behalf of himself and Jaswant Singh, J. speaking for himself and Tulzapurkar, J. on the day the Judgment was delivered i.e. as on 21-2-1978 +, had not prepared their separate opinions. They only declared that they would deliver their separate opinions later. This is clear from para 170 of the judgment which reads thus : (SCC p.293)

"We are in respectful agreement with the view expressed by Krishna Iyer, J., in this critical judgment that the Bangalore Water Supply and Sewerage Board appeal should be dismissed. We will give our reasons later indicating the area of concurrence and divergence, if any, on the various points in controversy on which our learned Brother has dwelt."

14. On the retirement of Beg, C.J., Chandrachud, J. took over as the Chief Justice and he delivered his separate opinion on 7-4-1978 which was obviously neither seen by Beg, C.J. nor dealt with by the other three Judges : Krishna Iyer, Bhagwati and Desai, JJ. As can be seen from the contents of the separate opinion subsequently delivered by Chandrachud, C.J. (as he then was), he did not fully agree with the opinion of Krishna Iyer, J. that the definition of "industry" although of wide amplitude can be restricted to take out of its purview certain sovereign functions of the State limited to its "inalienable functions" and other activities which are essentially for self and spiritual attainments. Chandrachud, C.J. seems to have projected a view that all kinds of organised activities giving rise to employer and employee relationship are covered by the wide definition of "industry" and its scope cannot be restricted by identifying and including certain types of industries and leaving some other types impliedly outside its purview."

11. I have been through the entire judgment. The question that falls for consideration presently, neither fell for consideration nor was decided. The Supreme Court in this case merely referred to the manner in which the learned Judges had prepared their respective judgments in Bangalore Water Supply & Sewerage Board Vs. A. Rajappa, (1978)2 SCC 213. It is important to note however that even in that case, as noted in paragraph 13 extracted above, the Bench delivered the judgment on 21st February, 1978 with its conclusion that the Appeal should be dismissed. The conclusion was unanimous. The separate opinions of some of the learned Judges were declared later.

Thus, the judgment had already been pronounced at the time when all the learned Judges were Judges of the Supreme Court. The situation before me is, as note above, different.

12. That we were concerned with a Writ Petition under Article 226 of the Constitution of India, makes, to my mind, no difference. There was nothing in the judgment of the Supreme in Surendra Singh's case which indicates that the same does not apply when a Bench hearing a matter under Article 226 of the Constitution of India. The ratio, to my mind, covers all proceedings, civil or criminal, Constitutional or otherwise.

13. It is pertinent to note that in Vinod Kumar Singh Vs. Banaras Hindu University & Ors., (1988)1 SCC 80, the Supreme Court dealt, albeit with a converse situation, with a case filed in the High Court as a Civil Writ Petition. It was not a matter pertaining to any branch of criminal law. It was also a matter under Article 226. A Division Bench of the High Court had in open Court pronounced the judgment after the hearing had concluded. Thereafter, the Division Bench released the case, did not sign the order and kept the matter before a different bench for fresh hearing. The Supreme Court upheld the Petitioner's submission that this could not have been done as the judgment had been pronounced and had thereby become operative. It is important to note that the Supreme Court in this Civil matter under Article 226 relied extensively and almost entirely upon the judgment in Surendra Singh's case.

14. Mr. Singhvi relied upon Chapter-XI, Rule 1 of the Original Side Rules, which read as under :-

"1. When judgment to be taken as ready.- (i) Where Judgment has been reserved in a case heard by a Division or Special Bench consisting of two or more Judges, and all of them are not available for sitting together at one place, such judgment may be pronounced by any of the Judges, who heard the case after the transcript or the transcripts of the Judgment has or have been initiated by all the Judges who had heard the case.

(ii) A Judgment delivered by this Court, when initialled by the Judge pronouncing it, either on the transcript of the Judgment or on the approval sheet attached to it shall be the final judgment of which copies could be supplied to the parties or their Advocates unless the Judge delivering it desires that he wants to have a fair copy of the Judgment for approval. In the latter event, the Judgment shall be considered to be final when the fair copy is approved and initialled by the Judge."

15. Mr. Singhvi emphasised the words ".....and all of them are not available for sitting together at one place.....". He submitted that these words indicate that so long as one of the Judges continues to be a Judge of the Court, he would be entitled to pronounce the judgment irrespective of the reason for which all of them are not available for sitting together at one place.

16. I am unable to agree. The rule contemplates a situation where one of the Judges is not physically present at the place where the judgment is to be pronounced. This may be for a variety of reasons. The other Judge may have been assigned work at a different Bench of the same High Court, he may be on leave, he may have fallen ill and, therefore, not been able to attend the Court. But, it is necessary and the rule contemplates that both the Judges should, at the time of pronouncement of the judgment, be Judges of that Court. The rule certainly does not entitle a Judge or Judges to pronounce a judgment when one of the Judges, who constituted the Bench is no longer a Judge of that Court.

17. In the circumstances, the judgment cannot be pronounced by me.

18. The Registrar General is directed to keep the draft Judgment in a sealed cover.

Order accordingly.