TMI Blog1953 (11) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... every page of the judgment as well as at the end but did not date it. He then sent this to Kidwai J. at Lucknow. He died on 24th December, 1962, before the judgment was delivered. After his death, on 5th January, 1953, his brother Judge Kidwai J. purported to deliver the judgment of the court. He signed it and dated it. The date he placed on it was 5th January, 1953, Bhargava J.'s signature was still there and anyone reading the judgment and not knowing the facts would conclude that Bhargava J. was a party to the delivery on 5th January, 1953. The appeal was dismissed and the sentence of death was confirmed. The question is whether this judgment could be validly delivered after the death of one of the two Judges who heard the appeal. The arguments covered a wide range but we intend to confine ourselves to the facts of this case and only deal with the narrower issues which arise here. Delivery of judgment is a solemn act which carries with it serious consequences for the person or persons involved. In a criminal case it often means the difference between freedom and jail, and when there is a conviction with a sentence of imprisonment, it alters the status of a pris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it was pronounced. Their Lordships said:- The rule does not say that if its requirements are not complied with the judgment shall be a nullity. So startling a result would need clear and precise words. Indeed the rule does not even state any definite time in which it is to be fulfilled. The time is left to be defined by what is reasonable. The rule from its very nature is not intended to affect the rights of parties to a judgment. It is intended to secure certainty in the ascertainment of what the judgment was. It is a rule which Judges are required to comply with for that object. No doubt in practice Judges do so comply, as it is their duty to do. But accidents may happen. A Judge may die after giving judgment but before he has had a reasonable opportunity to sign it. The court must have inherent jurisdiction to supply such a defect. The case of a Judge who has gone on leave before signing the judgment may call for more comment, but even so the convenience of the court and the interest of litigants must prevail. The defect is merely an irregularity. But in truth the difficulty is disposed of by sections 99 and 108, Civil Procedure Code. That was a civil case. This is a crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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, dis- cuss 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, how- ever 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 . Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of locus paniteniea, and indeed last minute alterations sometimes do occur. Therefore, however, much a draft judgment may have been signe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court. Seton-Kerr J., who had heard the case along with them, said-- Certainly as far as I can recollect, 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... (p. 13). Despite this, all nine Judges were unanimous in holding that those three opinions could not be regarded as judgments in the formal sense of the term. In our opinion, Jackson J. expressed the law aright in these words:- I have however always understood that it was necessary in strict practice that judgments should be delivered and pronounced in open court. Clearly, we are met today for the first and only time to give judgment in these appeals; and it appears to me, beyond question, that 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. (p. 5). Peacock C.J. pointed out at page 30: The mere arguments and expressions of opinion of individual Judges, who compose a court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. It is only part of a process of reaching a final conclusion; also there is no formal public declaration of the Judges' mind in open court and consequently there is no judgment' which can be acted upon. But after delivery the alteration cannot be made without notice to the parties and the proceeding must take place in open court, and if there is no alteration there is something which is final and conclusive and which can at once be acted upon. The difference is this. In the one case, one cannot know, and it would be against public policy to enquire, whether the draft of a judgment is the final conclusion of the Judge or is only a tentative opinion subject to alteration and change. In the second case, the Judge has publicly declared his mind and cannot therefore change it without notice to the parties and without hearing them afresh when that is necessary; and if there is no change the judgment continues in force. By change we mean an alteration of the decision and not merely the addition or subtraction of part of the reasoning. Our conclusion is that the judgment which Kidwa,i J. purported to deliver on 5th January, 1953, was not a valid judgment because the other me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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