In a case, three murder convicts appealed to the Allahabad High court (Lucknow Bench) against their conviction in that murder case. That appeal was heard on 5 Dec, 1952 by Justice Kidwai and Justice Bhargava and after hearing the appeal, judgment was reserved.
Before that judgment could be delivered, Justice Bhargava was transferred to Allahabad. At Allahabad, he dictated a Judgment on behalf of himself and Justice Kidwai, and also used pronoun ‘we’ and not ‘I’. He signed at every page of the judgment as well as at the end but did not date it.
He then sent this to Justice Kidwai at Lucknow. Justice Bhargava died on 24th Dec 1952 before the judgment was delivered. After his death, on 5th January, 1953, Justice Kidwai 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. In the judgment, the appeal was dismissed and the sentence of death was confirmed.
The question before the court was whether this “judgment” could be validly delivered after the death of one of the two Judges who heard the appeal.
Consequences of Judgment
The term of sentence starts from the moment judgment is delivered. It is therefore necessary to know with certainty exactly when these consequences start to take effect.
Meaning of Judgment
It is the “judgment” which decides the case and affects the rights and liberties of the parties
What constitute the Judgment?
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”.
Up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of locus poenitentiae (opportunity to withdraw from ongoing process), and indeed last minute alterations sometimes do occur.
Sign of a judge does not make judgment operative
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 it does crystallise into a full-fledged judgment and become operative.
It is necessary for the judge to present in the court while delivering the Judgment
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.
Big power, Big Burden
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.
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. 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 dawn upon him before the delivery of judgment.
Judges views may be final before their death but it can’t consider final
Views similar to this were expressed by a Full Bench of the Calcutta High Court consisting of nine Judges in the year 1867 in Mahomed Akil v. Asadunnissa Bibee
In that case, three of the seven Judges who constituted the Bench handed in signed judgments to the Registrar of the court. Before the judgment could be delivered, two of them retired and one died. A Full Bench of nine Judges was convened to consider 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, 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.
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, are not judgments. A judgment in the eye of the law is the final decision of the whole court. It is not because there are nine Judges that there are nine judgments. When each of the several Judges of whom a simple court is composed separately expresses his opinion when they are all assembled, there is still but one judgment, which is the foundation for one decree. If it were otherwise, and if each of the memoranda sent in on the present occasion were a judgment, there would be nine judgments in one case, some deciding one thing and some another, and each Judge would have to review his own judgment separately, if a review should be applied for. “
Delivery of judgment in open court make it final
As soon as the judgment is delivered, that becomes the operative pronouncement of the court. The law then provides for the manner in which it is to be authenticated and made certain. The rules regarding this differ but they do not form the essence of the matter and if there is irregularity in carrying them out it is curable.
Defect of Judges’ Signature may be curable
Thus, if a judgment happens not to be signed and is inadvertently acted on and executed, the proceedings consequent on it would be valid because the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of its subsequent authentication.
Alteration in Judgment
After the judgment has been delivered provision is made for review. One provision is that it can be freely altered or amended or even changed completely without further formality, except notice to the parties and a rehearing on the point of change should that be necessary, provided it has not been signed.
Another is that after signature a review properly so called would lie in civil cases but none in criminal; but the review, when it lies, is only permitted on very narrow grounds.
But in this case the mere fact that a Judge is dead and so cannot review his judgment does not affect the validity of the judgment which has already been delivered and has become effective.
For this reason, there is a distinction between judgments which have not been delivered and so have not become operative and those which have. In the former case, the alteration is out of court. It is not a judicial act. 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 means an alteration of the decision and not merely the addition or subtraction of part of the reasoning.
After making above observation and analysis on judgment procedure, the Supreme court finally reached at the conclusion and held that,
‘The judgment which Justice Kidwai purported to deliver on 5th January, 1953, was not a valid judgment because the other member of the Bench died before it could be delivered. The appeal is allowed and the order of the High Court which purports to be its judgment is set aside. As it is no longer possible for the Bench which heard the appeal and the confirmation proceedings to deliver a valid judgment we send the case back to the High Court for re-hearing and delivery of a proper judgment.”.
Surendra Singh And Others vs The State Of Uttar Pradesh,1954 AIR 194, 1954 SCR 330
 9 W.R.I. (F.B.)