Mohan Singh v. King-Emperor

Agarwala, J.:— Before stating the facts of this case it is necessary to set out its history. The appellant Mohan, Singh was tried and convicted under section 395 of the Penal Code by the Special Judge of Monghyr exercising jurisdiction under Ordinance II of 1942. As the sentence imposed on the accused was ten years, the learned Judge was required to refer the case to the Review Judge, and this was done. The Review Judge examined the evidence in the case and upheld the conviction and sentence. Thereafter the appellant acquired a right of appeal from his conviction and sentence by reason of the enactment of Ordinance XIX of 1943, and an appeal was preferred to this Court. The appeal came in the first instance before a Bench consisting of Reuben, J. and myself. The point then taken was that the Special Judge, Monghyr, had no jurisdiction to try the case as he had not been invested with power to try offences under section 395 of the Penal Code. In support of this a copy of a notification issued by the District Magistrate of Mongnyr, directing what offences should be tried by the Special Judge, was relied upon. This copy of the notification was in a collection of notices issued by various District Magistrates under the Ordinance of 1942 which has generally been, referred to in this Court at the hearing of appeals from the decisions of Courts constituted under the Ordinance. In the copy relied upon it did not appear that the learned Special Judge had been invested with powers to try offences under section 395. A judgment was, therefore, delivered, holding that the trial was without jurisdiction and directing the release of the appellant. Before the judgment had been typed or signed it was discovered that the copy of the notification of the District Magistrate which had been relied upon was an inaccurate copy, and that, as a matter of fact, section 395 was one of the sections mentioned in the notification. The Special Judge of Monghyr, therefore had been properly vested with powers to try offences under section 395. The attention of the learned advocate for the appellant was drawn to this state of affairs, and Reuben, J. and I directed that, in the circumstances, the order directing the release of the appellant should be recalled, and that the appeal should be heard de novo. When the appeal was taken up again before the present Bench the learned Advocate for the appellant raised the point that the former judgment, having been pronounced, was final, and that this Court had no power to re-hear the appeal or to alter the judgment delivered on the former occasion. The relevant section of the Code of Criminal Procedure is section 369 the language of which is as follows:

“Save as otherwise provided by this Code, or by any other law for the time being in force, or, in the case of a High Court established by Royal Charter by the Letters Patent of such High Court, no Court, when it has signed its judgment shall alter or review the same except to correct a clerical error.”

It is quite clear from this section that a judgment that has been signed cannot be altered or reviewed except for the limited purpose of correcting a clerical error. But there is nothing in this section or any other section of the Code to bar a Court from altering a judgment which has, not been signed. The signature of the judgment completes the judgment; but before the signature has been appended to it the judgment is not complete. That was held to be so a long ago as 1899 by a Division Bench of the Allahabad High Court in Queen-Empress v. Lalit Tiwari. It was there held that a judgment or order of the High Court is not complete until it is sealed in accordance with the rules of the High Court and that up to that time it may be altered by the Judge or Judges concerned therewith without any formal procedure by way of review of judgment being taken. In that case the judgment had actually been signed although it had not been sealed. That decision has been referred to with approval in two later, decisions of the same Court, namely, Emperor v. Gobind Sahai*. A Division Bench of the Calcutta High Court in Amodini Basee v. Darsan Ghose also held that it is competent to a Division Bench of the High Court, which has erroneously discharged a rule on a point of law and a misapprehension of the facts in connection thereof, to review its judgment before it has been signed. The learned Advocate for the appellant, however, relies on the decision of the Chief Justice of Allahabad sitting singly in Emperor v. Pragmadho Singh. The facts of that case were that judgments in certain criminal appeals were heard by a Judge of that Court who pronounced the judgment in open Court. The judgments were taken down by the judgment writer and in some of the cases warrants of release were signed by the Judge, but the judgments themselves, after being faired out remained unsigned by the Judge owing to his death. It was held that the omission to sign the fair copies of the judgments was in no way a serious difficulty and the appeals must be deemed to have been finally disposed of. That case is only an authority for the proposition that a judgment which has been pronounced in open Court is final, although not signed, unless and until it is modified. It is not an authority for the proposition that an unsigned judgment may not be properly altered or modified. Indeed, the learned Chief Justice, in deciding that case, did not refer either to section 369 of the Code or to the earlier decisions of his own Court, and, therefore, was not, quite clearly, intending to hold otherwise. I am satisfied, therefore, that, in the circumstances that happened this Court is competent to rehear the appeal and to pass such judgment as is thought proper on the facts of the case, despite the pronouncement of the former judgment which was the result of an inaccurate copy of the District Magistrate's notification being referred to.

[On an examination of the evidence in this case, the appeal was dismissed.]

Imam, J.:— I agree.

K.D

Appeal dismissed.

Rule made absolute.