C.B. Bhargava, J.
1. This is an application on behalf of Dhanna, Jagannath and Kana under Section 561A of the Code of Criminal Procedure for allowing them rehearing in S.B. Criminal Appeal No. 316 of 1962 which was rejected by the Court on 26th November, 1962.
2. At the time of hearing of the appeal, appellants and their counsel were absent and the appeal was decided after a perusal of the record of the case. The judgment was delivered orally in open Court. Before the transcript of the judgment was prepared by the judgment-writer, an application was moved that the transcript of the judgment should not be signed. Accordingly I did not sign the transcript pending hearing of this application.
3. The contention of the learned counsel is that I can rehear the appeal because the judgment passed on 26th November, 1962 has not been signed. He says that Section 369 of the Code applies only when a judgment has been signed and till then the Court can alter or review its judgment. It is also stated in the application that the learned counsel had two more cases fixed in the Daily Cause List of the High Court of 26th November, 1962 before two other Benches and besides had one sessions case fixed in the Court of the Additional Sessions Judge, No. 2, Jodhpur. It is stated that twice or thrice he looked inside the Court from outside and found that his case was not reached and so at 3 p.m. he told the Court peon that if his case was reached he should call him from the other Court where he is sitting. He says that he waited there till 4.15 p.m. but the peon of this Court did not call him. On the next day when he noticed the Daily Cause List he found that this appeal was not listed therein. But on coming to the Court he found that the judgment had been pronounce in the case on the previous day.
4. Notice of this application was given to the Government Advocate and the learned Assistant Government Advocate has appeared and has opposed this application on the ground that there is no sufficient cause to allow rehearing of the appeal. It is urged that the judgment in appeal has been pronounced and become final.
5. As regards the first submission that rehearing can be allowed to the appellants because the judgment has not yet been signed, it may be pointed out that Section 367 of the Code does not apply to judgments passed in criminal appellate jurisdiction. Sections 366 and 367 apply to judgments passed by criminal Court of original jurisdiction. Section 424 makes the rules contained in Chapter XXVI of the Code (which includes Section 369) applicable so far as may be practicable to the judgments of an appellate Court other than a High Court. There is thus no provision in the Code of Criminal Procedure requiring that the judgment of the High Court in its criminal appellate jurisdiction should be dated and signed in the manner provided in Section 367. (See Paragmadho Singh v. Emperor, AIR 1933 All 40 and State of Bombay v. Geoffrey Manners and Co., No. 2: AIR 1951 Bom 49).
The rules framed by this Court also provide that judgments may be delivered orally in open Court and a transcript can be initialled or signed when prepared by the judgment-writer later on. In Surendra Singh v. State of UP, AIR 1954 SC 194, it was observed by the Supreme Court that:
'A judgment within the meaning of these sections is the final decision of the Court intimated to the parties and to the world at large by formal 'pronouncement' or 'delivery' in open Court. It is a judicial act which must be performed in a judicial way. Small irregularities in the manner of pronouncement or the mode of delivery do not matter but the substance of the thing must be there: that can neither be blurred nor left to inference and conjecture nor can it be vague. All the rest -- the manner in which it is to be recorded, the way in which it is to be authenticated, the signing and the sealing, all the rules designed to secure certainty about its content and matter -- can be cured; but not the hard core, namely the formal intimation of the decision and its contents formally declared in a judicial way in open Court. The exact way in which this is done does not matter. In some Courts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment ismerely signed after giving notice to the parties and laying the draft on the table for a given number of days for inspection.
An important point therefore arises. 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 pronouncement. We lay no stress 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, 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'.
It cannot therefore, be said that the judgment delivered by this Court on 26th November, 1962, is open to review or alteration because it has not yet been signed. The order of rejection of appeal passed by this Court on 26th November, 1962 was formally declared in a judicial way in open Court and has gone on the record of the case and as such in my view it cannot be altered or reviewed.
The learned counsel then invokes the provisions of Section 561-A of the Code on the grounds stated above. In this connection he has referred to Keshav Lal v. Gaveria, AIR 1952 Raj 50, Sri Ram v. Emperor, AIR 1948 All 106, Chandrika v. Rex, AIR 1949 All 176, Ramballabh Jha v. State of Bihar, AIR 1962 Pat 417, Mohan Singh v. Emperor, AIR 1944 Pat 209 and Bhagwan Dass v. State. AIR 1954 Madh-Bha. 10. These cases lay down that a revision or appeal in which judgment has been delivered can be reheard if the conditions laid down in Section 561-A are satisfied. I have discussed all these cases in Criminal Revision No. 138 of 1962 (Raj) in which a similar application was presented by the same learned counsel for allowing him rehearing of a revision application which was decided by this Court on 16th November, 1962 in the absence of the counsel. Rules 79 and 80 of the Rajasthan High Court Rules, 1952, lay down the procedure for obtaining adjournments or for putting the case out of place in the Daily List and are as under:
Rule 79. On an application being made to it, the Bench may, for sufficient cause shown, order any case listed before it for bearing to stand out of its place in the Day's List or to be adjourned for such period as may be considered just. Where an adjournment for not more than three days is sought, the application may be made orally. In considering whether there is sufficient cause, any objection on behalf of the other party shall be taken into account.
Such motions shall be made as soon as the Bench begins its work for the day and shall notordinarily be entertained if made at any other time:
Provided that no adjournment shall be grantedunder this Rule unless there is sufficient work forthe day.
Rule 80. No party shall have the right to havea case put out of its place in the day's List on the ground that his Advocate or his brief-holder isengaged before another Bench.
The Bench may, however, order any case otherthan a miscellaneous case or application or a casewhich is fixed for hearing under Rule11 of Order XLIof the Code to stand out of its place in the List if such Advocate or brief-holder is alone in the case and is actually arguing a case before another Bench or is alone in a case that is actually beingheard by another Bench and has, before the case is called on, given information in writing to theBench Reader that he is so engaged before the other Bench. A case will, however, not ordinarily be so put out of its place in the List unless there is another case in the List in which the parties or their Advocates are ready and present in the Court room so that the case may be proceeded with at once.
It shall be the duty of the Advocate as soon as the case in which he is engaged in the mannerindicated above in another Bench is over to inform the Bench Reader accordingly.
A case shall not ordinarily be put out of its place in the List under this Rule more than once.
It is conceded that no application was made to the Court for adjournment of the case nor wasthe Reader informed so that the case might havebeen put out of its place in the Daily List. It does not appear from the application that thelearned counsel was actually arguing any case before another Bench when this appeal was called for hearing. If the learned counsel had other cases listed on that day before other Benches he could have mentioned this case when the Court began its work for the day or could have intimated the Reader as provided in Rule 80 of the Rules. I cannot take notice of what transpired between the learned counsel and the peon of this Court. When the case was called learned counsel was not present in the Court and it is clear from the application itself that throughout that day learned counsel did not come inside the Court room.
The inherent powers under Section 561Ashould be exercised very sparingly and only whenthe facts of the case justify the tests laid down inthe section itself. They do not authorise the Courtto rehear a case where the appellant or his counselwere not heard on account of their own fault. Iam, therefore, not satisfied that the absence of thelearned counsel at the time the appeal was calledfor hearing was due to any sufficient cause andthe ends of justice require that a rehearing shouldbe granted to him. The appeal was decided onmerits after a perusal of the record of the case.
6. There is no force in this application, andit is hereby rejected.
7. Learned counsel for the petitioners praysfor leave to appeal to the Supreme Court. I donot see sufficient grounds to grant such leave. The prayer is refused.