Supreme Court: In a case where the order was dictated in the court, but had not been signed, the 3-judge bench of Dr. BS Chauhan, J. Chelameswar and MY Eqbal, JJ refused to accept the argument that once the order had been dictated in open court, the order to review or recall is not permissible in view of the provisions of Section 362 Cr.P.C. and took the opportunity to explain what a judgment is.
The order came in the case where the petitioners were convicted under Section 222 IPC. They had then preferred an appeal before the Gujarat High Court and during the pendency of the appeal, the petitioners had been enlarged on bail in November 2006. 7 years later, in December 2013, the appeal was finally allowed, and the order was dictated in open court allowing the appeal on technical issue.
However, the order dictated in open court and acquitting the petitioners was recalled by the court suo moto vide order dated 27.12.2013 and directed the appeal to be reheard 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 commission of their duty where sanction under Section 197 Cr.P.C. would be attracted.
It was, hence, argued that once the order had been dictated in open court, the order to review or recall is not permissible.
The Court rejected the contention and explained 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.
The Court heavily relied on the judgment in Surendra Singh v. State of U.P., AIR 1954 SC 194 wherein it was held,
“… 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. We feel 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 drawn upon him before the delivery of judgment.”
Referring to several judgments, the Court observed,
“… unless the judgment is signed and sealed, it is not a judgment in strict legal sense and therefore, in exceptional circumstances, the order can be recalled and altered to a certain extent.”
[Kushalbhai Ratanbhai Rohit v. State of Gujarat, (2014) 9 SCC 124, decided on 06.05.2014]
For petitioners: Senior Advocate Fakhruddin
For State: Advocate Anurag Ahluwalia