Supreme Court has ruled that Judge can recall
the Order and change his mind even if the draft copy is signed and dictated in
the open Court.
In Kushalbhai Ratanbhai Rohit & Ors v. The
State of Gujarat (SLP (Crl.) No.453 of 2014) the Bench comprising of Justices
B.S. Chauhan, J. Chelameswar and M.Y. Eqbal took a view that in certain
circumstances the Order can be recalled and altered even if it was dictated in
the open Court.
The petition was filed against the interim Order
dated 27.12.2013 passed by the High Court of Gujarat at Ahmedabad. Petitioners
were Police Constables who were in charge of escorting an accused in Narcotics
Case. Accused absconded from the custody. The petitioners were charged and
found guilty for the offence punishable under Section 222 Indian Penal Code.
Petitioners preferred an appeal before the High
Court and at the first instance the appeal was allowed on the ground that
sanction of the State Government under Section 197 of the Code of Criminal
Procedure, 1973 was necessarily required for the conviction.
The Order was recalled on the ground that the Court wanted to examine the issue further as to whether in the facts and
circumstances of the case where the accused had been police constables; the
offence could not be attributed to have been committed under the discharge of
their duty where sanction under Section 197 Cr.P.C. would be attracted.
Petitioners contented that Section 362 Cr.P.C.
puts an embargo to call, recall or review any judgment or Order passed in
criminal case once it has been pronounced and signed.
Court relied upon its own decision in Sangam Lal v. Rent Control and
Eviction Officer, Allahabad & Ors which the Court came to the
conclusion that until a judgment is signed and sealed after delivering in
Court, it is not a judgment and it can be changed or altered at any time before
it is signed and sealed.
Court heavily relied upon its Judgment in Surendra Singh & Ors. v. State
of U.P which observed as follows;
“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”.
Court found no merits in the appeal and dismissed
holding that no exception can be taken to the procedure adopted by the High
Court
Court has made a remark as follows;
“A Judge’s responsibility is very heavy,
particularly, in a case where a man’s life and liberty hang upon his decision
nothing can be left to chance or doubt or conjecture. Therefore, one cannot
assume that the Judge would not have changed his mind before the judgment
become final”.
