Income Tax

“A judge can change his mind before pronouncing a judgment” –declares the Apex court

The Apex Court in a recent judgment held that despite pronouncing a judgment in an open court a Judge can change his view until the final judgment is signed and sealed by him.
The judgment of the Hon’ble Supreme court passed on 14.5.2014 in the case of Kushalbhai Ratanbhai Rohit and Others vs. State of Gujarat [Special Leave Petition (CRL.)No.453 of 2014] is a landmark judgment. The Apex Court held that till the moment a judgment is finally delivered, a Judge has the right to change his opinion. He is entitled to make last minute alterations though a draft judgment may have been signed.

Recalling of an oral judgment:
Until a judgment is formally delivered in the Court, a judge can rightly alter his mind. Thereafter it becomes operative. However it has been stated that the Judge who “delivers” the judgment, must exist as a member of the Court at the time of delivery to stop delivery and change his mind.
It is not necessary that the judge should be physically present in court but he should be there as a member of the Court to cause the alteration due to the last minute change of his mind. If he hands over a draft and signs it, it can be assumed that if he is alive and he can change his mind. But one cannot assume that there can be a change of mind if he is not present as a member of the Court.

Brief facts of the case:
This petition was filed against an interim order passed by the Gujarat High Court in Criminal Appeal No.2012 of 2006.
An FIR was registered at Amraiwadi Police Station, Ahmadabad against one Mahalingam alias Shiva for an offence punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985. According to the said FIR, a case was initiated which was transferred to the Sessions Court at Bhadra, Ahmadabad and the trial was started.
On 4.8.2003, the accused who was detained at Vadodara Central Jail was taken to the Sessions Court at Bhadra, Ahmadabad. However, the case was adjourned and the accused while returning to jail expressed his desire to see his sick mother. They stopped for a tea break where the escort persons started vomiting as some substance was allegedly mixed up with tea by the relatives of the accused. The accused at such point of time absconded from the custody of those persons. A complaint was lodged against the accused by the said escort party for the offence punishable under Sections 328, 222, 223, 224 and 114 of the IPC.
Thereafter charge sheet was filed against the escort personnel including the petitioners and they were found guilty for the offence punishable under Section 222, IPC as per order dated 9.11.2006. One of the petitioners was punished with three years rigorous imprisonment and a fine of Rs.5, 000/- and in case of default he had to undergo simple imprisonment for another one year. The other two petitioners were convicted under Section 222, IPC and were punished with two years rigorous imprisonment and a fine of Rs.2, 000/- each, and in case of default he had to undergo simple imprisonment for another six months.

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Aggrieved by the aforesaid order, the petitioners filed the Criminal Appeal No. 2012 of 2006 before the High Court of Gujarat. During the pendency of the appeal, the petitioners were released on bail by an order dated 22.11.2006. The appeal was finally heard on 11.12.2013. The court held that sanction of the State Government as per Section 197 of the Code of Criminal Procedure, 1973 was needed, as such, the court allowed the appeal on technical grounds. The order was dictated in open court and the petitioners were acquitted by an order dated 11.12.2013 which was again recalled by the court suo moto on 27.12.2013. The appeal was directed to be re – heard. The ground mentioned in the recall order was that that it was necessary to examine the issue as to whether in the facts of the case, the offence could not be considered to have been committed under the duty of the petitioners where sanction under Section 197, Code of Criminal procedure was required. The appeal was dismissed by the Hon’ble Court.
The petitioners filed an appeal before the Apex Court against the impugned order.

Highlights of the judgment:
• The Apex Court held that there was no submission made on behalf of the petitioners regarding once an order had been dictated in open court, any review or recall of the same cannot be allowed as per Section 362 of the Code of Criminal Procedure as Section 362 of the Code puts an embargo to call, recall or review any judgment or order passed in a criminal case after the same is dictated and signed. In the present case, the order was dictated in the court but the same was not signed. For the said reasons the judge was right in recalling the order.
• The Hon’ble Court relied on the judgment given in the case of Mohan Singh v. King Emperor 1943 ILR (Pat) 28 by the Patna High Court holding where the order directing the release of the accused was recalled and the appeal was directed to be re – heard. When the matter was taken up for re – hearing, the objection regarding recalling the order was rejected.
• The Court also relied upon the judgment of Calcutta High Court in Amodini Dasee v. Darsan Ghose, 1911 ILR (Cal) 828 and that of Allahabad High Court in Emperor v. Pragmadho Singh, 1932 ILR (All.) 132.
• The Bombay High Court in a case appearing before it expressed the view that if the judgment is not signed and sealed, it is not a judgment in the strict legal sense and can be rightly recalled. A draft only upon formal delivery as the judgment crystallizes into a complete judgment and then only it becomes operative.
• It was held that a Judge who “delivers” the judgment must be in existence as a member of the Court so that he can change his mind, but actual physical presence is not required.
• It was further stated that the responsibility of a judge is heavy especially when the life and liberty of a person depends upon his decision. The mere signing of the draft cannot close his mind. Hence a Judge can change his mind before the judgment become final.
• In view of the above, the appeal was dismissed.

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