Rajadhyaksha, J.

1. We delivered the above oral judgment*in open Ct. on Wednesday September 13, and a writ in terms of the order made by us was issued on the same day. The Ct. was closed on 15th, 16th and 17th. On Monday the 18th morning, before we received the transcript of the oral judgment, both Mr. Amin, who had appeared for the accused, and the Advocate General saw me in the Chambers. Mr. Amin stated that if we had not signed the judgment, he would like the matter to be mentioned again in Ct. so far as the liability of the Directors, viz., accused 2 and 5, was concerned. I mentioned to them my doubts as to whether it was open to us to review a judgment which was orally delivered by us in open Ct. Both Mr. Amin and the Advocate General promised to look into the point. On Monday evening I received the transcript of the oral judgment. But in view of the fact that the matter had been mentioned to me earlier in the day, we postponed the question of settling the judgment and putting our initials to the transcript. Mr. Amin saw me in the Chambers on Wednesday the 20th, and I suggested to him that he and the Advocate General should mention the matter to us in open Ct. on next day. It was accordingly mentioned on the 21st morning, and we have now had the matter argued before us.

*Reported in A. I. R

. (38) 1951 Bom. 45 [LQ/BomHC/1950/87] : 53 Bom. L. R. 112.a

2. Three points arise for our consideration. The first is whether it is open to us to review or alter a judgment which we delivered in open Ct. on September 1

3. Secondly, if it was open to us to review the judgment, what should be the limits of such a review. And lastly, if we had the power to review, and the matter falls within the limits within which such a review could be made, then what is the effect of such review on the decision at which we had already arrived.



3. So far as the first point is concerned, Mr. Amin relied primarily on the provisions of S. 369, Code of Criminal Procedure. That section is in the following terms :

"Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a H. C. for a Part A State, by the Letters Patent or other instrument constituting such H. C., no Ct., when it has signed its judgment, shall alter or review the same, except to correct a clerical error."

Mr. Amin, therefore, argued that so long as the judgment had not been signed it was open to the Ct. to alter or review the same, and that it is only after it has been signed that it cannot be altered or reviewed except to correct a clerical error. His submission was that as we had not signed the judgment, it was open to us to alter or review it, even though we had disposed of the appeal on September 13, and a writ had already been issued in pursuance of the order made therein. In support of this contention, Mr. Amin relied on three judgments of the Allahabad H. C. in Queen-Empress v. Lalit Tiwari, 21 ALL. 177 : (1899 A. W. N. 15), Emperor v. Kallu, 27 ALL. 92 : (1 Cr. L. J. 710) and Emperor v. Govind Sahai, 38 ALL. 134: (A. I. R. (3) 1916 ALL 183 [LQ/AllHC/1915/289] : 17 Cr. L. J. 47). He also relied on the judgment of the Calcutta H. C. in Amodini Dasee v. Darsan Ghose, 38 Cal. 828 [LQ/CalHC/1911/304] : (13 Cr. L. J. 120) and the judgment of the Patna H. C. in Mohan Singh v. Emperor, 23 Pat. 28 : (A. I. R. (31) 1944 Pat. 209 [LQ/PatHC/1943/89] : 46 Cr. L. J. 30).



4. Section 369, Criminal P. C., as it stood prior to its being amended by Act XVIII [18] of 1923, ran as follows :

"No Ct., other than a High Court, when it has signed its judgment, shall alter or review the same, except as provided in Ss. 395 and 424 or to correct a clerical error."

The use of the words "other than a H. C." admitted of an interpretation that the H. C. had unlimited powers of altering or reviewing its judgment even after it had been signed. This contention, however, was expressly negatived by several H. Cs. who held that the H. Cs. had no power of altering or reviewing their judgments except to correct a clerical error, and no such power could be derived by implication from the wording of S. 36

9. See Queen-Empress v. C. P. Fox, 10 Bom. 176 (F.B.) and In the matter of Gibbons, 14 Cal. 42 [LQ/CalHC/1886/139] (F.B.). The position, however, has now been made clear by the amended S. 369, which states that no Ct. after it has signed its judgment, shall alter or review it except to correct a clerical error, unless such power is derived from some other provision in the Code or from some other law for the time being in force, or in the case of a H. C., from the Letters Patent or other instrument constituting such H. C. It was argued by Mr. Amin that the very wording of the section itself implies that before a judgment has been signed, it was open to the Ct. to alter or review it. This argument would have had considerable force, were it not for the provisions of S. 424, Cr. P. C. That section enacts :

"The rules contained in Chap. XXVI as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment of any Appellate Ct. other than a H. C."

Then there is a proviso with which we are not concerned. Section 369 is contained in chap. 26, Criminal P. C., and the wording of S. 424 makes it clear that all the rules contained in chap. 26, are rules governing judgments of a criminal Ct. of original jurisdiction. Section 424 makes these rules applicable, so far as may be practicable, to the judgments of an appellate Ct. Even so, it has been laid down that they apply to an appellate Ct. "other than a H. C." It would, therefore, follow that the rules contained in chap 26 relating to judgments, have no application to the judgment of a H. C. exercising appellate jurisdiction. Section 369, Cr. P. C. does not, therefore, apply, so far as the criminal appellate judgments of a H. C. are concerned, and it is, therefore, not possible to argue from the, wording of that section that the H. C. exercising criminal appellate jurisdiction can alter or review a judgment before it has been signed. In fact, there are no rules governing the judgment of the H. C. exercising criminal appellate jurisdiction. The provisions of S. 367, which require that the judgment should be signed and dated by the presiding officer in open Ct. at the time of pronouncing it, apply only to criminal Cts. exercising original jurisdiction, and as far as practicable, to criminal Ct. exercising appellate jurisdiction other than a H. C. We are fortified in this view by the F. B. decision of our own.

H. C. in Emperor v. Nandlal Chunilal, 48 Com. L. R. 41 : (A. I. R. (33) 1946 Bom. 276 [LQ/BomHC/1945/98] : 47 Cr. L. J. 700 F.B.) to which I was a party. At p. 44, the following observations appear :

"This (i.e., S. 369) applies to the judgment of a trial Ct. and S. 367 prescribes what the form and contents of the judgment of a trial Ct. ought to be. Section 424, dealing with the judgments of the appellate Ct. says that the rules relating to the judgments of a trial Ct. shall apply, as far as may be practicable, to judgments of appellate Cts. other than a H. C. It must follow, therefore, that there no definite rules as to what the judgment of a H. C. acting in its appellate as well as revisional jurisdiction should contain. This is quite natural because the judgment of a H. C. in its criminal jurisdiction is ordinarily final and does not, therefore, require the statement of any reasons, especially in a revisional appln. where the parties are not bound to be heard. There is, therefore, practically no distinction between an order and a judgment of a H. C. disposing of a proceeding before it."

5. In that case, we were primarily concerned with deciding what amounts to a judgment of a H. C. We were not then called upon to consider as to whether a judgment of a H. C. requires signature, and if so, whether it could be reviewed before the signature was affixed. But the observations, so far as they go, clearly indicate that there are no rules as to what the judgment of a H. C. exercising criminal appellate and revisional jurisdiction should contain and when it obtains finality. In the particular case under consideration, the review was asked for long after the earlier judgment had been delivered and a writ in pursuance thereof issued Sulaiman C. J. in Emperor v. Pragmadho Singh, 55 ALL. 132 : (A.I.R. (20) 1933 ALL. 40 [LQ/AllHC/1932/122] : 34 Cr. L.J. 703) has taken the same view. In that case, certain judgments had been given by Mr. Justice Banerji. But the learned Judge died before some of the judgments could be signed, as required by certain rules of the Allahabad H. C. It was argued that the orders passed by Banerji J. could not be regarded as finally disposing of the appeals, inasmuch as the judgments had not been signed. Sulaiman C. J. observed (p. 133) :

"It is quite clear that S. 366 of the Cri. P. C. which requires that the judgment of every trial in any criminal Ct. of original jurisdiction shall be pronounced in open Ct, and S. 367 which provides that the written judgment should be dated and signed by the presiding officer in open Ct. do not apply to a H. C. Chapter 26 applies to judgments delivered by criminal courts of original jurisdiction. Section 424 of the Act makes the rules contained in Chapter 26 as to the judgments of criminal courts of original jurisdiction applicable to judgments of any appellate court other than a H. C. There is therefore no provision which requires that the H. C. after pronouncing a judgment in open Ct. should date and sign the same. As a matter of fact all that S. 425 requires is that the judgment should be certified to the Ct. below."

6. Therefore the judgments delivered by Banerji J. before he died were held to be final, and the omission to initial a fair copy was in no way considered a serious defect. It is true that the learned C. J. says that the provisions of Ss. 366 and 367 do not apply to the H. C. He obviously meant that they do not apply to the H. C. exercising criminal appellate jurisdiction. The H. C. of Allahabad does not exercise original criminal jurisdiction, such as that exercised by some other H. Cs. The learned C. J. was dealing with judgments delivered by Banerji J. in exercise of the appellate criminal jurisdiction of the H. C. and he has expressed the view that there is no provision that the H. C. after pronouncing such judgments in open Ct. should date and sign the same. We must, therefore, hold that there is no provision anywhere in the Code of Cri. P. C. that the judgments delivered by the H. C. in its criminal appellate jurisdiction should be dated and signed in the manner stated in S. 367 of the Cri. P. C. and the provisions of S. 369, which suggest that before a judgment is signed it could be altered or reviewed, do not also apply to such judgments.

7. Turning now to the cases on which Mr. Amin relied, the earliest one that he referred to was Queen-Empress v. Lalit Tiwari, 21 ALL. 177 : (1899 A. W. N. 15). That was a case in which a reference was made to the H. C. for enhancement of sentence. The learned Judge who heard the reference wrote an order declining to interfere and signed and dated it. On the same day, the learned Judge reconsidered the order, erased it and substituted therefore an order calling upon some of the accused to show cause why their sentences should not be enhanced. When the rule came on for hearing, it was contended that the learned Judge had no power to change the order which was signed by him. It was held by a Division Bench of the H. C. "that having regard to the rules of the Cts." a judgment was not complete until it was sealed. They held that until a judgment was sealed, it could be altered without a formal appln. for review. It would be noticed that the learned Judge reconsidered his earlier order on the very same day, presumably even before a writ was issued declining to interfere on the reference made to him. To that extent the order had not received finality. That order had not been sealed as an order of the Ct. under para. 5 of the Letters Patent of the Allahabad H. C. The second point to be noted is that the judgment of the learned Judges makes no reference either to S. 369 or S. 424 of the Cri. P. C. Further, the judgment clearly appears to have been based on R. 83 of the Rules of that Court, which in terms appears to have specified that a judgment was not complete until it was signed and sealed. That case, therefore, stands on its own facts and is based primarily on the special rules of the Allahabad H. C. The second judgment of that Ct. to which Mr. Amin made reference was Emperor v. Kallu, 27 ALL. 92: (1 Cr. L. J. 710). In that case, there was an appeal from jail against an order under S. 110 of the Cri. P. C. The jail appeal was dismissed on 10-05-190

4. The learned Judge signed the order, but the order was not sealed. An appln. was made by counsel on 14-05-1904, in respect of the same matter. The appln. was admitted on 04-06 190

4. When the matter came up for hearing, a preliminary objection was taken that the learned Judge could not review his earlier order dated 10-05-1904, after it had been signed. The objection was overruled, specifically on the authority of Queen-Empress v. Lalit Tiwari, 21 ALL. 177: (1899 A. W. N. 15). This case again makes no reference either to S. 369 or S. 424 and is based on the special rules of the Allahabad H. C. Both these authorities say that even a judgment had been signed, it can be altered or reviewed provided it is not sealed as required by the rules of that Ct. This goes even further than what S. 369 of the Cri. P. C. provides. The third case of that H. C. to which a reference was made, is Emperor v. Gobind Sahai, 38 ALL. 134 : (A. I. R. (3) 1916 all. 183 [LQ/AllHC/1915/289] : 17 Cr. l. J. 47). In that case a revision appln. was dismissed by the H. C. on 02-07-1915. The order was signed but not sealed. A fresh appln. was presented on 06-09-1915. It was held that in so far as the fresh appln. was for a review of the original order, it had to be rejected on the authority of In the matter of Gibbons, 14 Cal 42 [LQ/CalHC/1886/139] (f.b.) but that in so far as it fell within the authority of Queen Empress v. Lalit Tiwari, 21 all. 177: (1899 a. W. N. 15) and Emperor v. Kallu, 27 all. 92: (1 Cr. l. J. 710) it should be dealt with by the Judge, not as a review appln. but as a matter in which the final order was not sealed as required by Rr. 5 and 8 of chap. vii of the rules of that Ct. This authority again proceeds on the special rule of that Ct. and merely purports to follow the two earlier decisions of that Ct.



8. The other two authorities on which Mr. Amin relied were those of the Calcutta and the Patna H. Cts. In Amodini Dasee v. Darsan Ghose, 38 Cal. 828 [LQ/CalHC/1911/304] : (13 Cr. l. J. 120), the H. C. of Calcutta held that it was competent to a Division Bench of the H. C. which has erroneously discharged the rule on a point of law and misapprehension of facts in connection therewith to review its judgment before it had been signed. In that case, the Sub-divisional Mag. of Baraset had reviewed a complaint in which the accused had originally been discharged by the same Mag. After it was revived, it was sent to another Mag. for trial. But later on, it was withdrawn by the Sub-Divisional Mag. to his own file. On a day fixed for hearing, no fresh evidence was produced, and the accused were discharged. On a revision appln. being filed in the H. C. a Division Bench held that the Sub-Divisional Mag. had no jurisdiction to revive an order of discharge which had been passed by another Mag. being erroneously under the impression that the Sub-Divisional Mag. had revived an order of discharge passed by the Mag. to whom the case was sent for trial. A few minutes after the judgment was delivered, and before it was signed, the petnrs. vakil pointed out that the Sub-Divisional Mag. had revived an order of discharge passed by himself, and that it was competent for him to do so on the authority of the Full Bench in Mir Ahwad Hossein v. Mahomed Askari, 29 Cal. 726 : (6 C. W. N. 633 f.b.). Thereupon a rule was issued, and when it came on for hearing a preliminary objection was taken that the Bench could not, having delivered its judgment discharging the rule, review the same. The learned Judges referred to the case of In the matter of Gibbons, 14 Cal. 42 [LQ/CalHC/1886/139] (f.b.) and held that it was competent for them to do so, as the terms of S. 369 of the Cri. P.C., were granted and as they had not signed the judgment. They thought that their view could easily be inferred from the case of In the matter of Gibbons, 14 Cal. 42 [LQ/CalHC/1886/139] (f.b.) and they relied on Queen-Empress v. Lalit Tiwari, 21 ALL 177: (1899 A.W.N. 15) where it had been held that a judgment or order of the H. C. was not complete until it was sealed in accordance with the Rules of the Court, and up to that time could be altered by the Judges concerned without any formal procedure by way of the review of the judgment being taken. It would be noticed that the Ct. did not consider the provisions of S. 424 which in express terms states that the rules contained in chap. XXVI apply to the judgments of the Cts. of original criminal jurisdiction and not to the H. C. exercising appellate jurisdiction. They followed the decision in Queen Empress v. Lalit Tiwari, 21 ALL. 177: (1899 A. W. N. 15) which was specifically based on the special rules of that Ct. It is not clear from the report whether similar rules existed in the Calcutta H. C. Finally, it should be noticed that the correct facts were brought to the notice of the learned Judges within a few minutes after the first judgment discharging the rule was delivered, and presumably, therefore, before a writ had been issued in terms of that order.



9. The other ruling on which Mr. Amin relied was that of the Patna H. C. in Mohan Singh v. King-Emperor, 23 Pat. 28: (A. I. R. (31) 1944 Pat. 209 [LQ/PatHC/1943/89] : 46 Cr. L. J. 30). In that case, the accused was convicted under s. 395 and sentenced to rigorous imprisonment for ten years by the Special Judge of Monghyr under Ordinance II of 1942. The case was reviewed by the Review Judge who confirmed the conviction and sentence. An appeal against that order came up before a Division Bench who allowed the appeal under an erroneous impression that the Special Judge, Monghyr, who had tried the accused, had no jurisdiction to try an offence under S. 395, I. P. C. The decision was based on a copy of the notification conferring jurisdiction on the Special Judge which was produced before the Ct. A judgment was delivered holding that the trial was without jurisdiction and directing the release of the applt. Before the judgment was typed and signed, it was discovered that the copy of the notification which bad been relied upon was an inaccurate copy, and that the Special Judge had jurisdiction in respect of the offence under S. 395, I. P. C. Thereupon, the order directing the release of the accused was recalled and the appeal was directed to be heard de novo. When the appeal came on for hearing, it was contended that the Ct. had no power to rehear the appeal or to alter the judgment delivered on the former occasion. The learned Judges, relying upon the provisions of S. 369 of the Cri. P. C. held that there was nothing in that section or any other section of the Code to bar the Ct. from altering a judgment which had not been signed. In their view the signature on the judgment completed the judgment and before the signature was appended to it the judgment was not complete. They relied upon the three decisions of the Allahabad H. C. to which I have already referred and the decision of the Calcutta H. C. in Amodini Dasee v. Darsan Ghose, 38 Cal. 828 [LQ/CalHC/1911/304] : (13 Cr. L. J. 120). When the judgment of the C. J., Allahabad H. C. in Emperor v. Pragmadho Singh, 55 ALL 132 : (A. I. R. (20) 1933 ALL 40 [LQ/AllHC/1932/122] : 34 Cr. L. J. 703) was brought to their notice, they held

"that the case was an authority for the proposition that the judgment which had been pronounced in the open Ct. was final, although not signed, unless and until it is modified. It was not an authority for the proposition that an unsigned judgment may not be properly altered or modified."

In this case again, the provisions of S. 424 of the Cri. P. C., were not brought to the notice of the learned Judges, and the question whether S. 369 of the Cri. P. C. applied to the criminal appellate judgment of the H. C., in view of S. 424 of the Cri. P. C., was not considered. It is possible that the Patna H. C. had a rule similar to that of the Allahabad H. C., requiring signing and sealing of judgments or else the applicability of the reasoning of the Allahabad H. C. based on its own rules, to the proceedings of the Patna H. C. was not considered.



10. These are all the rulings on which Mr. Amin relied. In none of these cases was the question considered from the point of view of the provisions of S. 424, Cr. P. C. That section, as I have stated, makes it perfectly clear that the provisions of chap. XXVI, Cr. P. C. relating to judgments, do not apply to the criminal appellate judgments of the H. Cs. With respect, we are in agreement with the view taken by Sulaiman C. J. in Emperor v. Pragmadho Singh, 55 ALL. 132 : (A. I. R. (20) 1933 ALL. 40 [LQ/AllHC/1932/122] : 34 Cr. L. J. 703).



11. Therefore, it is clear that there is no provision of law or any rule regulating the judgments of the H. C. in exercise of the criminal appellate jurisdiction. The rules contained in Ss. 366, 367 and 369, Cr. P. C., do not apply to such judgments, and there is no provision of law which requires the Ct. to sign its judgments. It would, therefore, follow that the implication flowing from the terms of S. 369, Cr. P. C. about the power to review a judgment before it is signed does not arise so far as such judgments are concerned.



12. The question then arises as to when such judgment orally delivered in open Ct. receives its finality. The practice in England is stated in Archbolds "Criminal Pleadings, Evidence and Practice," 22nd Edn. At p. 218 the following observations occur :

"The Court may, at any time during the same assizes or sessions or any adjournment thereof, vacate the judgment passed upon a prisoner, before it has become matter of record, and pass another, less or even more severe. When once the judgment is solemly entered on the record, no Court can make any alteration in it....., but if any material defect appears on the face of it, it can be reversed or amended in appeal." The Bombay H. C. is a Court of record Under cl. 7 of the Letters Patent of the Bombay H. C.,

"all writs, summonses, precepts, rules, orders and other mandatory processes issued by the H. C. of Bombay shall run and be in the name and styles of "us" or of our heirs successor and shall be sealed with the seal of the said H. C."

We are of the opinion that when any oral judgment is delivered, the order passed by the Ct. becomes final as soon as it is entered on the record, and a writ issued in pursuance thereof under the seal of the Ct. as required by cl. 7 of the Letters Patent and cannot thereafter be altered or reviewed.This view is supported by an unreported judgment of this Ct. in Queen-Empress v. Waman, 1893 Rat Un. Cr. C. 65

9. In delivering the judgment in the revision appln. in that case, the learned Judges expressed the view, that on the facts found by the Sessions Judge, a charge of which the accused was found guilty might have been framed and therefore the conviction ought to be upheld. But it was immediately represented by Mr. Khare on behalf of the appct. that the point had not been argued and therefore they decided to reserve that point for a further hearing. To that course, an objection was taken by the learned Govt. Pleader who relied upon Queen Empress v. C. P. Fox, 10 Bom. 176 (F.B.), which showed that an order made by the H. C. in revision could not be reviewed. On that point, Fulton J. observed as follows (p. 663) :

".....without questioning the correctness of this decision we overruled the objection because no order had been recorded when the appln. was made. Mr. Khare asked to be allowed to argue the question directly the judgment was pronounced and the Deputy Registrar was thereupon at once instructed not to issue any order until the matter had been further considered. In the F. B. case of Queen v. Godhai Raut, 5 W. R. Cr. 61: (Beng. L. R. Sup. Vol. 436), the Calcutta H.C. while holding that in a Criminal matter it could not review its own judgment remarked: We do not mean to say that if before judgment had been recorded the attention of the Ct. be called to any matter showing that there is an error or mistake in the judgment pronounced, the Ct. has not the power of correcting such error or mistake. Now the soundness of this view cannot, I think, be impugned for it seems clearly reasonable and is in no way inconsistent with the decision in Imperatrix v. Fox, which dealt with a recorded judgment In the present case, the judgment had not been recorded when the order to hear further argument was made."

It will be noticed that emphasis was laid on the recording of the judgment and not on the signing of the judgment. In our opinion, therefore, when an oral judgment is delivered by the H. C. in its criminal appellate jurisdiction, the order made receives its finality when it is recorded and a writ in terms of the order is issued under the seal of the Court. The recording of the order and issuing a writ in terms thereof under the seal of the Ct. invest that order with finality.

1

3. Our attention was invited to State v. Ramchandra Annaji, Cr. A. No. 55 of 1950 D/-21-07-50, by Gajendragadkar and Vyas JJ. in which this Ct. after it had passed its order, decided to review it. In that case, the accused was convicted under S., 302 I. P. C. and sentenced to transportation for life. On appeal, Gajendragadkar and Vyas JJ. confirmed the conviction, but decided to give the accused the benefit of S. 6, Bombay Borstal Schools Act, XVIII [18] of 1929, and they directed that the accused should be sent to the Borstal School under S. 6 for three years. After they delivered the judgment, the learned Govt. Pleader wanted to argue that S. 6, Borstal Schools Act did not apply to a case where the sentence awardable was not only transportation, but death. They therefore set the matter down for argument. But before doing so, they gave specific instructions to the office not to record the judgment and not to draw up a final order until the point raised by the Govt. Pleader was argued and decided. That case is, therefore, in conformity with the view which we take, viz. that the order became final when it was recorded and a writ under the seal of the Ct. was issued.

1

4. Our attention was further invited to sub-R. (bb) of R. 12 of the High Court Appellate Side Rules (corresponding to R. 14 (c) of the 1950 ed.) which says that the Registrar may sign all judgments and certify judgments and orders to the lower Ct. in criminal cases. The Registrar is required to sign the judgments in order to certify their correctness to the lower Ct. This is only a ministerial act required to be performed in order to ensure that the lower Cts. get correct copies of the judgments delivered by the H. C. The judgments are also signed by the Registrar after the Judges have approved their transcripts and initialled them in token of their correctness. It could, therefore, hardly be suggested that until this ministerial act has been done by the Registrar, judgments delivered in open Ct. do not become final and the Judges could review or alter them. Rule 125B (corresponding to R. 158 of the 1950 ed.) is in these terms:

"A judgment delivered by this Ct. when initialled by the Judge pronouncing it shall be deemed to be a final judgment of which copies could be supplied the parties or to their Advocates unless the Judge delivering it desires that he wants to have a fair copy of the judgment for approval. In the latter event, the judgment shall be considered to be final when the fair copy is approved of and initialled by the Judge. In either case the judgment shall not be taken to be ready for copies being supplied until the decrees or orders have been signed by the Depty Registrar under R. 126."

The initialling by the Judge referred to in this rule is not in order to give finality to the Cts order which has already been communicated to the lower Ct. and to the parties concerned and has taken effect. The initialling that is referred to is merely in token of the correctness of the transcript which purports to represent in long hand what was said by the Judge in open Ct. and taken down in shorthand. It frequently happens that the transcript does not correctly represent what the Judge stated. Sometimes there are omissions. All these are intended to be corrected when the transcript comes to the Judges before copies thereof are issued to the parties. The initialling is, therefore, merely in token of the correctness of the reasons given for the order which was made in the open Ct. and which took effect when it was recorded and a writ issued in pursuance thereof. The judgment then becomes final in the sense that it correctly reproduces the reasons for the order made by the Ct. But as we have stated, the final order cannot be altered, for the order is effective the moment it is entered on the record and a writ issued under the seal of the Ct. If it were otherwise and the "initialling" was necessary to make the judgment complete and to give it finality, no writ could be issued till the transcript of the judgment is initialled. But it has been the invariable practice of this Ct. to issue writs and orders immediately after the judgment is pronounced in open Ct. The transcript is in many cases submitted for initials of the Judge several days thereafter. After the judgment is initialled, copies are sent to lower Cts.

15. Any other view is bound to lead to difficulties. A certain period of time must elapse between the order of the Ct. and the preparation of the transcript of the judgment. The order is usually converted into a writ on the same day. If the argument that a judgment delivered in open Ct. can be altered or reviewed before the transcript comes to the Judge for initialling be correct, it is conceivable that there will be no finality to the judgment until after a very long time. If the counsel for the accused thinks of a new argument which he forgot to advance at the first hearing and asks the Ct. to permit him to argue it merely because the transcript of the original judgment had not been initialled and if he is entitled to do so, then the judgment passed in pursuance of such rehearing will also not be final until that judgment is again initialled by the Judges. Again, during that interval, the counsel may think of another argument and may ask that the Ct. should review the second judgment before that judgment is initialled by the Judges, and this process can go on ad infinitum. It could hardly be suggested that such a procedure was contemplated by the Criminal Procedure Code. Such difficulty arises only in the case of a H. C. because under S. 367, Cri. P. C, the order of the trial Ct. and under S. 424 of the lower appellate Court, has to be dated and signed by the Judge in open Ct. at the time of pronouncing it, and no interval elapses between the pronouncement of the judgment and the affixing of the Judges signature to it. In the H. C. oral judgments are delivered in open Ct. No signature is intended to be affixed to the judgments. There are no rules which require such signature to be affixed, and the order takes effect as soon as it is recorded and a writ is issued in terms of that order under the seal of the Ct. There is, therefore, no question of reviewing or altering a judgment before "signing" it. But a judgment or order delivered in open Ct. can be altered before it is recorded and before a writ under the seal of the Ct. is issued.

16. In the case before us, our earlier order of September 13 became final as soon as it was recorded and a writ under the seal of the Ct. was issued on the same day. It is not, therefore, open to us to review or alter it merely because the transcript of the judgment was not submitted to us till three or four days thereafter.

17. Even if we are wrong in the view we take about the circumstances which give finality to the judgment given in exercise of the criminal appellate jurisdiction, and it is open to this Ct. to review or alter its judgment after it has been recorded and a writ issued in pursuance thereof, we think that this power should be exercised very sparingly. It should, in our opinion, be exercised only where there is an error apparent on the face of the record or an obvious mistake about the facts which, if not corrected, would lead to miscarriage of justice. In the Calcutta case Amodini Dasee v. Darsan Ghose, 38 Cal 828 [LQ/CalHC/1911/304] : (13 Cr. l. J. 120), to which I have referred, there was a misapprehension about the facts in respect of the revival of a case in which the accused had been discharged earlier. In the Patna case Mohan Singh v. King Emperor, 23 Pat. 28 : (a. i. R. (31) 1944 Pat. 209 [LQ/PatHC/1943/89] : 46 Cr. L. J. 30), there was an error apparent on the face of the record, because the notification which was produced before the Court was an incorrect notification. In such cases, it might be legitimate to review the earlier judgment. But where as in the present case, a new defence is sought to be taken and a new argument sought to be advanced, we do not think it would be legitimate to review or alter the judgment on that ground. If such procedure was allowed, then it is conceivable that a judgment of this Ct. may not receive any finality and it would be possible to have successive hearings of the same matter, depending upon the ingenuity of the counsel to discover fresh arguments during the interval that must necessarily elapse between the delivery of the oral judgment in open Ct. and the production of the transcript of that judgment for the initials of the Judge. We, therefore, think that this is not a case where we would be justified in altering or reviewing our earlier judgment, even if we had the power to do so.



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8. As in our opinion we have no power of review as the judgment has already received finality, it is not necessary to examine what we might have done if we had such power and if we had considered that this was a fit case for the exercise of that power. If the matter was open to review, the order that we might have passed would depend upon what our original order would have been, if the arguments now advanced by Mr. Amin had been advanced then. The principal argument on which Mr. Amin asked us to review the earlier order is that accused 2 and 5 who are the directors of the company (which is accused 1 in this case), have not been proved to have had any knowledge of this fraudulent deception. He conceded that if they could be held to have had that knowledge, then there would be no defence for them. But he urged that on the record, as it stood, there was no evidence that the directors had any such knowledge. He referred us to books on company law indicating what the duties of the directors were and stated that the directors could not be deemed to have any knowledge of the day-today affairs of the company. He invited our attention to the case of British Thomson-Houston Co. v. Sterling Accessories, Ltd., (1924) 1 ch. 33 : (93 L. J. ch. 335) in which it was held that the directors of a company cannot be made liable for an infringement of patent by the company merely by reason of their position as directors, even in a case where they are the sole directors and shareholders of the infringing company. At p. 40, the following observations occur :

". . . there is no evidence from which it ought or can be inferred that the deft. directors have authorised the wrongful acts. To draw that inference from the fact that they are sole directors and share-holders of the deft. company would be manifestly wrong and contrary to the principles enunciated by the House of Lords in the cases already referred to, and there is no evidence of any other facts at all in relation to the matter."

Mr. Amin argued that if the directors could not be held even civilly liable, much less could a criminal liability be fastened upon them.



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9. The basis of the above decision relied on by Mr. Amin was that the "Companies Acts expressly contemplate that people may substitute the limited liability of a company for the unlimited liability of the individual, with the object that by this means enterprise and adventure may be encouraged," and that to hold the directors personally liable for the acts of a company not authorised by them "would have nullified the purpose for which the creation of limited companies was authorised by the Statute." Where, however, an offence is committed by a company, the directors would also be liable if the incriminating act was done under their authority or with their knowledge. This position was conceded by Mr. Amin. The question to be considered, therefore, is whether accused 2 and 5 were aware of the deception. This is a question of fact. But it was never contended that accused 2 and 5 had no knowledge of the deception. That position was not taken in the trial Ct. In the trial Ct. both the accused stated, "I deny the charge and have nothing further to add." The accused were then represented by an experienced advocate like Mr. Kanuga, and even in the course of the arguments before the learned Chief Presidency Mag. it was never contended that the accused had no knowledge of the deception. It was sought to be argued that it was never their intention to deceive the public or the authorities. The Chief Presidency Mag. accepted the contention that the accused never set themselves up as selling a product which was manufactured in England. In support of this, an argument was advanced that the formula was obtained from Anne French Laboratories at 4, Old Bond Street, London, W. 1. The defence then taken up was, therefore, not that accused 2 and 5 were not aware of the false labels used on the goods, but that they were justified in using such labels because the goods were manufactured according to the formula obtained from the English firm. We have dealt with that argument in our earlier judgment. But it was never argued either in the trial Ct. by Mr. Kanuga when he argued the matter or in this Ct. by Mr. Amin when we heard the appeal against the acquittal that accused 2 and 5 could not be held to be guilty because the accused had no knowledge of the deception. Mr. Amin was then instructed by a well known and experienced firm of solicitors. If there was anything in that argument, that would have been the most obvious defence to take right from the very start. These products have been in the market since at least 1946, and probably therefore it was not thought worthwhile to raise the contention that the accused had no knowledge of the deception. It must, however, be admitted, as was conceded by the learned Advocate General, that the evidence on record, so far as it goes, does not indicate that the accused had any knowledge of the deception, unless such knowledge could be inferred from a presumption arising under S. 114, I. E. Act. If this argument had been advanced before we passed our orders on 13th September, we do not think that we would have dismissed the appeal against the acquittal of these accused on that account, but we would probably have ordered further evidence to be recorded in order to ascertain whether, apart from the presumption arising under S. 114, there was any evidence to show that the accused had the guilty knowledge. If the accused had raised such a contention when their statements were recorded, it might have been possible for the prosecution to lead the necessary evidence even after the framing of the charge. Therefore on the record, as it stood, we would probably not have confirmed the order of acquittal. But having set it aside, we might either have remanded the case to the trial Ct. for a fresh trial or we might ourselves have asked for fresh evidence to be recorded and certified to us. But as we hold that we have no power of altering or reviewing our earlier judgment, it is not open to us to make that order.

20. Under those circumstances, we do not think that we can review or alter the order which we have passed on 13-09-1950, and that order must therefore stand.

21. An appln. has been made by Mr. Kolah on behalf of the accused that we should certify that this is a fit case for appeal to the S. C. We think that the question whether this Ct. has power to review or alter its judgment after the judgment has once been recorded and a writ in terms of that order has been issued, is an important point of law, and we think that this is a fit case in which a certificate might be issued for an appeal to the S. C.

22. We accordingly grant the certificate.

Order accordingly.