1956 Supreme(SC) 97

SUPREME COURT OF INDIA
15th November 1956
JAGANNADHA DAS, IMAM AND GOVINDA MENON, JJ.
Jumman and others, Appellants
Versus
The State of Punjab, Respondent.
Bansa, Appellant
Versus
State of Punjab, Respondent,
Hazara Singh, Appellant
Versus
 The State of Punjab, Respondent.
Criminal Appeal Nos. 129, 130 and 182 of 1956.
Criminal Appeal No. 129 of 1956.
Criminal Appeal No. 130 of 1956.
Criminal Appeal No. 182 of 1956.
Advocates appeared
Mr. Harbans Singh, Advocate (in No. 129 of 1956) and Mr. S.P. Varma, ,Advocate ( in No. 153 and 182 of 1956), for Appellants. Mr Gopal Singh and Mr. T.M. Sen, Advocates, for Respondents in all Appeals.

Headnote:Section 300, Exception 4-Sudden attack on each other by contending parties-Nature of offence committed.

       Held: Where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor, such a situation does not permit of the plea of private defence on either side and would not be a case of sudden fight and conflict and has to be dealt with under S. 309, I.P.C., Exception 4. - Section 369-Meaningof "judgment"-Division Bench of High Court hearing appeal-Death of Judge who prepared judgment before its delivery-other Judge cannot validly deliver judgment.

       Held: A judgment within the meaning of sections 369 and 537 of the Criminal Procedure Code is the final decision of the court intimated to the parties and to the world at large by "formal " pronouncement" or " de livery" in open court. It is a judicial fact which must be performed in a judicial way. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of the pronouncement. This 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. 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 penitential " and indeed last minute alterations often do occur; Therefore, however such 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. 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 step 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. A Judges responsibility is heavy and when- a mans 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.

       Consequently, where of the two Judges of the High Court who hear an appeal in a criminal case, one, purporting to write a joint judgment, prepares a judgment, signs it and sends it to the other Judge but before it is delivered, dies, then the judgment, if delivered by the other judge, is not a valid judgment. - Sections 374, 375-8essions trial-Death sentence-Reference to High Court-Scope.

       Held: On a reference to the High Court under Section 374 of the Code, the entire case is before the High Court. In fact it is a continuation of the trial of the accused on the same evidence and any additional evidence and that is why the High Court is given power to take fresh evidence under S. 375 if it so desires. There is a difference when a reference is made under S. 374 and when disposing of an appeal under S. 423 and that is that the High Court has to satisfy itself as to whether a case beyond reasonable doubt has been made out against the accused persons for the infliction of penalty of death. In fact the proceedings before the High Court are a reappraisal and the reassessment of the entire facts and law in order that the High Court should be satisfied on the materials about the guilt or innocence of the accused persons. Such being the case, it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the law it is for High Court to come to an independent conclusion of its own.