Surendra Singh And Others vs The State Of Uttar Pradesh
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: supreme-court
Case Number: Criminal Appeal No. 34 of 1953
Decision Date: 16 November 1953
Coram: Vivian Bose, B.K. Mukherjea, Natwarlal H. Bhagwati
In this case the Supreme Court of India recorded the matter titled Surendra Singh and Others versus the State of Uttar Pradesh, the judgment being dated 16 November 1953. The judgment was authored by Justice Vivian Bose and the bench comprised Justice Vivian Bose, Justice B. K. Mukherjea and Justice Natwarlal H. Bhagwati. The citation of the decision is 1954 AIR 194 and 1954 SCR 330, and it appears in several law reports as indicated by the citator information.
The matter concerned the validity of a judgment that had been heard by a bench of two judges but whose delivery was completed by only one of those judges after the other judge had died. The procedural issue arose under the Allahabad High Court Rules of 1952, Chapter VII, Rules 1 to 4, which govern the preparation, signing and delivery of judgments. The headnote of the decision summarised the Court’s view that when a judgment is signed by both judges yet delivered in open court by a single judge after the death of the other, such a judgment cannot be deemed valid and the case must be reheard. The Court explained that a judgment represents the final decision of a court and is communicated to the parties and the public by a formal pronouncement or delivery in open court; until that delivery takes place, the judges retain the right to alter their decision. The Court relied on earlier authorities, namely Firm Gokal Chand v. Firm Nand Ram (AIR 1938 PC 292) and Mahomed Akil v. Asadunnissa Bibee (9 W.R. 1 F.B.).
The matter before the Supreme Court was Criminal Appeal No. 34 of 1953, an appeal from a judgment and order dated 5 January 1953 passed by the High Court of Judicature at Allahabad (Lucknow Bench), which had been delivered by Justices Kidwai and Bhargava. The original conviction arose from a judgment dated 19 January 1952 of the Sessions Judge, Sitapur, in Sessions Case No. 97 of 1951. The appellant side was represented by counsel for the appellants, while counsel for the respondent represented the State of Uttar Pradesh.
The Court noted that three appellants were before it, each having been prosecuted for the murder of a person named Babu Singh. Of the three, only Surendra Singh was convicted of murder and sentenced to death. The remaining two appellants were convicted under Section 225 of the Indian Penal Code and each received three years of rigorous imprisonment together with a fine of Rs. 200. All three men appealed to the Allahabad High Court (Lucknow Bench). Their appeal was heard on 5 December 1952 by Justices Kidwai and Bhargava, after which the judgment was reserved.
Before the reserved judgment could be delivered, Justice Bhargava was transferred to Allahabad. While at Allahabad, Justice Bhargava dictated a document that appeared to be a judgment, claiming to do so on behalf of himself and his fellow judge. In that document he used the plural pronoun “we,” signed every page, and affixed his signature at the end, but he did not date the document. He then transmitted this document to Justice Kidwai at Lucknow. Justice Bhargava died on 24 December 1962, prior to any formal delivery of the judgment. After his death, on 5 January 1953, Justice Kidwai attempted to deliver the purported judgment, signing and dating it as of that day. The document still bore Justice Bhargava’s signature, and a reader unaware of the surrounding facts would be led to believe that both judges participated in the delivery on 5 January 1953.
The High Court dismissed the appeal and affirmed the death sentence. The central question before the Supreme Court was whether a judgment could be validly delivered after the death of one of the two judges who had heard the appeal. The Court observed that the arguments presented spanned a wide range of issues, but it chose to limit its examination to the specific facts of this case and to address only the narrow issue of the validity of the delivery of the judgment. The Court emphasized that the delivery of a judgment is a solemn act with serious consequences for the parties concerned, particularly in criminal matters where it can determine liberty or confinement.
In the case before the Court, the two judges who had heard the appeal were Judge Kidwai J. and Judge Bhargava J. The appellants, including Surendra Singh, had been convicted of murder, with Singh sentenced to death and the other two convicted under section 225 of the Indian Penal Code and sentenced to three years’ rigorous imprisonment and a fine of Rs. 200 each. All three men appealed to the Allahabad High Court, Lucknow Bench, and the appeal was heard on 31 December 1952 by Judges Kidwai and Bhargava. After hearing the arguments, the bench reserved its judgment. Before the judgment could be formally delivered, Judge Bhargava died on 24 December 1962. On 5 January 1953, Judge Kidwai, who was Bhargava’s brother, transmitted a document that purported to be the judgment of the Court. He signed the document, dated it 5 January 1953, and left the signature of the deceased Judge Bhargava on each page. Because Bhargava’s signature remained, a person reading the document without knowledge of the intervening events could reasonably conclude that both judges had jointly delivered the judgment on that date. The High Court dismissed the appeal and confirmed the death sentence against Surendra Singh. The pivotal issue that arose from these facts was whether a judgment could be validly delivered after the death of one of the two judges who formed the bench hearing the appeal, and whether the presence of the deceased judge’s signature rendered the delivery of the judgment legally effective.
Delivery of a judgment is a solemn act that carries serious consequences for the parties involved. In criminal proceedings it determines whether an accused remains an under-trial or becomes a convicted prisoner, and it marks the precise moment from which any term of imprisonment begins to run. Because of these significant effects, the law requires certainty about the exact point at which a judgment takes effect and becomes final with respect to the court that rendered it. Various procedural rules have therefore been formulated to specify the manner and timing of the pronouncement and delivery of decisions. The Criminal Procedure Code contains provisions, namely sections 366 and 424, that govern courts subordinate to the High Court. High Courts, however, possess the authority to establish their own procedural rules, a power that is now continued under article 225 of the Constitution. The Allahabad High Court exercised this authority by framing a new set of Rules in 1952, which came into force on 15 September 1952. The Court’s present consideration focuses on Chapter VII of those Rules, specifically rule 1.4, which outlines four distinct situations: (1) judgments pronounced immediately as soon as the case is heard; (2) judgments pronounced for delivery on a future date; (3) oral judgments; and (4) written judgments. The Rules sometimes use the term “pronounced” and at other times “delivered.” Counsel attempted to argue that a judgment must be both pronounced and delivered, treating the two terms as separate requirements. The Court, however, declined to adopt an overly technical construction of the Rules, emphasizing that they are intended, like all procedural rules, to further the ends of justice and should not be applied in a manner that unduly restricts the court’s inherent jurisdiction to correct defects caused by extraordinary circumstances such as the death of a judge.
The Court refused to interpret the provisions in an unduly narrow manner and also declined to limit the inherent jurisdiction that the Privy Council has recognised as belonging to courts for the purpose of remedying intrinsic defects that may arise from unexpected circumstances such as the death of a judge. Since the parties had relied on a decision of the Judicial Committee of the Privy Council, the Court reproduced the relevant passage from that decision. The passage occurs on page 295 of the reported case Firm Gokal Chand v. Firm Nand Ram, reported in A.I.R. 1938 P.C. 292. The factual situation in that case differed from the present matter because, in the earlier case, the judgment was actually delivered in open court with both judges who formed the bench present and in agreement. However, before the judgment could be signed, one of the judges went on leave. The rules applicable to that case required that a judgment be signed and dated at the moment it was pronounced. The Privy Council judges, referred to as Their Lordships, observed that the rule does not stipulate that non-compliance would automatically render the judgment a nullity, noting that such a drastic consequence would require explicit and precise language. They further pointed out that the rule does not prescribe a specific time for compliance, leaving the appropriate timing to be determined by what is reasonable. From its very nature, the rule is not intended to affect the substantive rights of the parties; rather, it aims to ensure certainty as to the exact content of the judgment. Consequently, judges are duty-bound to comply with the rule in order to achieve that objective. While judges generally do so, the Court recognised that accidents may occur, such as the death of a judge after delivering a judgment but before having a reasonable opportunity to sign it. In such instances, the Court must possess an inherent jurisdiction to remedy the defect. Even where a judge departs on leave before signing a judgment, the Court emphasized that the convenience of the court and the interests of the litigants should take precedence, characterising the defect as merely an irregularity. Moreover, the difficulty is effectively resolved by the provisions of sections 99 and 108 of the Civil Procedure Code, which address similar situations.
The present matter, however, concerns a criminal proceeding rather than a civil one. Section 537 of the Criminal Procedure Code performs a function analogous to that of sections 99 and 108 of the Civil Procedure Code, and the underlying principle of both sets of provisions is identical. Despite all the allowances made and every effort undertaken to avoid undue technicality, the fundamental question that remains is the precise meaning of a “judgment,” because it is the judgment that ultimately decides the case and impacts the rights and liberties of the parties involved. This is the essence of the dispute, and, as the Privy Council emphasized, the entire purpose of the rules is to secure certainty in ascertaining what the judgment actually is. The significance of answering this question is heightened in criminal cases, particularly because section 369 of the Criminal Procedure Code provides that, except as otherwise provided by the Code or any other law then in force, no court, having signed its judgment, shall alter or review it except to correct a clerical error. Accordingly, a clear understanding of what constitutes a judgment is indispensable for ensuring that the final decision of the court is properly communicated to the parties and to the public, and that the substantive rights of the accused are protected.
Section 537 of the Criminal Procedure Code provides that, except as otherwise provided by the Code or any other law, no court may alter or review a judgment after it has been signed, except to correct a clerical error. In the Court’s view, a judgment, as contemplated by this provision, is the final decision of the court communicated to the parties and to the public through a formal pronouncement or delivery made in open court. This communication constitutes a judicial act that must be performed in a judicial manner. Minor irregularities in the way the pronouncement is made or the mode of delivery are not material, but the substantive content of the decision must be clear, unequivocal and cannot be left to inference, conjecture, or vagueness. The procedural requirements concerning how a judgment is recorded, authenticated, signed and sealed are intended to ensure certainty about its content; however, they do not affect the essential element, which is the formal intimation of the decision and its contents in a judicial fashion in open court. The precise method of delivery is immaterial: some courts deliver judgments orally, some read them out, some pronounce only the operative portion, and others simply sign the judgment after giving notice to the parties and placing the draft on the table for inspection for a prescribed period. An important point follows. The decision that is pronounced or intimated must represent the mind of the court at the moment of pronouncement. The Court does not emphasise the mode of delivery, provided it is a judicial act performed in open court, and the expression must reflect the court’s mental state at that time. This is the first judicial act concerning the judgment performed after the hearing; all activities preceding it occur outside the courtroom and are not intended to be the operative act that initiates the consequences of the judgment. Judges may discuss the matter among themselves, reach a tentative conclusion, write drafts, and exchange those drafts, even signing them; none of these constitute the judgment. The final operative act is the formal declaration made in open court with the intention of making it the operative decision of the court, and that declaration constitutes the “judgment.” Up to the moment of delivery, judges retain the right to change their minds; there exists a locus puniteni, and at times last-minute alterations occur. Consequently, even if a draft judgment has been signed beforehand, it remains a draft until it is formally delivered as the court’s judgment, at which point it crystallises into a full-fledged, operative judgment.
The Court observed that a last-minute alteration could occur. Consequently, even if a draft judgment had been signed earlier, it remained merely a draft until it was formally delivered as the judgment of the court. Only after that delivery did the document acquire the status of a full-fledged judgment and become operative. The Court explained that the judge who delivers the judgment, or who causes a fellow judge to deliver it, must be a member of the court at the moment of delivery so that he could, if necessary, stop the delivery and declare that he had changed his mind. Physical presence in the courtroom was not required; however, the judge had to remain a member of the court and be in a position to halt the delivery and make any alteration should a last-minute change of mind arise. If a judge submitted a draft, signed it, and indicated that the draft represented his final exposition of views, the Court held that those views could be presumed to continue to be his views at the moment of delivery, provided he was alive and still able to change his mind and that he took no steps to arrest the delivery. The Court cautioned, however, that such a presumption could not be made where the judge was no longer in a position to act. The Court emphasized that a judge’s responsibility was heavy, especially when a person’s life or liberty depended on the decision, and that no element of chance, doubt, or conjecture could be permitted, noting also the involvement of public policy. The Court further noted that it was a frequent practice to send a draft, sometimes a signed draft, to another judge who had also heard the case, either merely for information or for consideration and criticism. The mere signing of a draft did not necessarily indicate that the judge’s mind was closed. The Court expressed the view that it would be contrary to public policy to leave open the possibility of an inquiry into whether a draft sent by a judge was intended to embody his final and unalterable opinion or was only a tentative draft sent with an implicit understanding that the judge remained free to change his mind if fresh light emerged before the judgment was delivered. The Court referred to similar views expressed by a Full Bench of the Calcutta High Court consisting of nine judges in 1867 in Mahomed Akil v. Asadunnissa Bibee. In that case, three of the seven judges who formed the bench had handed signed judgments to the Registrar. Before those judgments could be delivered, two of the judges retired and one died. A Full Bench of nine judges was then convened to decide 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, observed that, as far as he could recall, the judges appeared to have fully formed their minds on a matter they had considered very seriously and on which they had abundant …
In the 1867 decision of the Calcutta High Court, Mahomed Akil v. Asadunnissa Bibee, the Court examined whether draft opinions submitted by three judges could be treated as formal judgments after two of those judges had retired and another had died before delivery. Although the judges had apparently reached a final view, Seton-Kerr J. observed that “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…”. Nevertheless, the full bench of nine judges unanimously held that those three draft opinions could not be regarded as judgments in the formal sense. Jackson J. expressed the principle succinctly, stating that “it was necessary in strict practice that judgments should be delivered and pronounced in open court… Judges who have died or have retired from the court cannot join in the judgment which is to be delivered today, and express their dissent from it.” Peacock C.J., on page thirty, further clarified that the mere arguments or opinions of individual judges do not constitute judgments; a judgment is the final decision of the whole court. He explained that even though a court may consist of nine judges, there is only one judgment that forms the basis of a single decree, and if each memorandum were treated as a separate judgment there would be nine contradictory judgments in the same case, each requiring its own review.
The present Court agrees with the essential rule articulated by the learned Chief Justice and the other judges, even if it does not adopt every statement they made. Once a judgment has been delivered, it becomes the operative pronouncement of the court. The law then provides procedures for authenticating that judgment, and although the specific rules may vary, any irregularity in authentication does not affect the substantive validity of the judgment. Consequently, if a judgment is inadvertently not signed but is acted upon, the subsequent proceedings remain valid, provided the judgment can be shown to have been properly delivered. After delivery, the judgment may be reviewed. A judgment that has not been signed may be altered, amended, or even wholly changed without additional formalities, subject only to notice to the parties and, if necessary, a rehearing on the point of change. Once a judgment has been signed, a proper review—permitted in civil cases on narrow grounds—may be sought, but the death of a judge who contributed to the original judgment does not invalidate the judgment that has already become effective.
In criminal matters, a review of a judgment is permitted only on very narrow grounds, and no provision exists for a general review as there is in civil cases. Nevertheless, the mere death of a judge who would otherwise be able to review his own judgment does not invalidate a judgment that has already been delivered and has become operative. Consequently, the law distinguishes between judgments that have not been delivered and therefore have not acquired operative force, and those that have been delivered and are effective. When a judgment remains undelivered, any alteration to it occurs outside the courtroom, is not a judicial act, and forms merely a step in the process of reaching a final conclusion; there is no formal public declaration of the judge’s mind in open court and therefore no “judgment” upon which parties may act. Once a judgment has been delivered, any alteration must be made with notice to the parties, must be conducted in open court, and, absent such alteration, the judgment stands as final, conclusive, and immediately enforceable. The distinction lies in the fact that, for an undelivered draft, it is impossible to determine whether it represents the judge’s final decision or a tentative view subject to change, and it would be contrary to public policy to inquire into that uncertainty. In contrast, a delivered judgment reflects a public declaration of the judge’s mind, which cannot be altered without notifying the parties and, where necessary, hearing them anew; if no alteration occurs, the judgment continues in force. By “change” the Court means an alteration of the decision itself, not merely a modification of the reasoning accompanying it. Applying this principle, the Court concluded that the judgment which Kidwai J. purported to deliver on 5 January 1953 was not a valid judgment because the other member of the Bench died before the judgment could be delivered. Accordingly, the appeal was allowed and the order of the High Court claiming to be its judgment was set aside. Since the Bench that heard the appeal and the confirmation proceedings could no longer deliver a valid judgment, the matter was remitted to the High Court for a fresh hearing and the delivery of a proper judgment. The order for stay dated 25 May 1953 had thereafter expired. As a result, the death sentence could not be carried out because there was no valid decision on the appeal or on the confirmation. The position therefore reverted to that which existed when the appeal was originally made to the High Court. The second and third appellants were ordered to surrender to bail, restoring them to the status they occupied at the time of filing the appeal. The appeal was allowed. The appellant was represented by counsel, and the respondent was represented by counsel.