Dilip B. Bhosale, C.J.—A stimulating question/situation falls for our consideration in view of the order of the Division Bench dated 27.2.2017. It would be advantageous to reproduce the said order to understand the backdrop against which the reference to this Bench has been made. The order dated 27.2.2017 has been passed on a bail application bearing No.66948 of 2012 in Criminal Appeal No.2218 of 2009, which reads thus:
"This matter has come up before us as a consequence of difference of opinion expressed by my esteemed brother Justice Virendra Kumar-II.
The second bail application of the accused was taken up for hearing on 02.02.2017. After conclusion of the dictation of the order, the stenographer typed the order and thereafter, the file was presented before me for signing the order. I signed the order and thereafter, the record was sent to my esteemed brother for signing the order. At this juncture, my esteemed brother made a dissent note on the small slip appended to the order, after signing on the slip. Thereafter, he scored the signature and made an endorsement on the slip appended to the top of the bail order in the following form:-
"I disagree with the view."
This order was signed by me earlier. Thereafter along with this slip, I received an order giving a dissenting opinion in the matter. I granted the bail in the open Court. The dissent view was expressed at the time of signing of the order. As and when dissent view was brought to my notice, I passed the following order:-
"After passing of the above order, the file was sent to brother Justice Virendra Kumar-II for signing the order and when the file was returned back from the chamber of brother Justice Virendra Kumar-II, I came to know that a dissent order has been passed by my esteemed brother though no dissent was indicated at the time when the order was dictated in the open Court.
Accordingly, list this case on 23.02.2017.
Sd/-
S.S. Chauhan, J."
The above order passed by me was sent to Brother Justice Virendra Kumar-II, but his Lordship made an endorsement at the bottom of the said order in the following form:-
"I had expressed my views during the course of hearing.
Sd/-
Virendra Kumar-II, J."
It is to be noted that after the dissent order was received by me, I had drawn the attention of my esteemed brother regarding the law settled in the case of Vinod Kumar Singh v. Banaras Hindu University & others reported in (1988) 1 SCC 80. Having done my duty as a senior member of the Bench, I tried to convince my esteemed brother but my esteemed brother was of the view that whatever view he has expressed is correct. I am not on merit of the case. The question involved in the present case is as to which stage, the dissent is to be expressed.
Learned counsel for the appellant has placed reliance upon two full Bench decisions and one Hon''ble Supreme Court decision in the case of Vinod Kumar Singh v. Banaras Hindu University & others reported in (1988) 1 SCC 80 and other Full Bench decision of this Court in Misc. Bench No. 9470 of 2014 (Smt. Chawali (Habc) 594 of 2012 Now P.I.L.) v. State of U.P. and others and a Full Bench decision of Calcutta High Court rendered on 13.07.2016 in C.R.M. No.3767 of 2016 with C.R.A.N. No. 2604 of 2016, C.R.M. No. 3770 of 2016 with C.R.A.N. No. 2605 of 2016 (Mallikarjuna Rao & others v. The State of West Bengal with A. Gopal Krisha Murthy @ A. Gopala Krishnamurthy and another v. The State of West Bengal and in all these decisions, it has been held that the dissent is to be indicated at the time when the dictation is over. I am not deliberating anything about the discussions as opined by my esteemed brother on the order sheet wherein he has indicated that he showed his dissent during course of hearing. At which stage dissent to be indicated, at the time of conclusion of dictation or during the course of discussion; this requires consideration by a larger Bench in view of difference of opinion between the Bench members.
Let the record be placed before Hon''ble the Chief Justice for nomination of a larger Bench.
Order Date :- 27.2.2017
Sd/-
S.S. Chauhan, J.
Learned counsel for appellant has placed reliance on the case law mentioned above. But as mentioned by me earlier I had disclosed and expressed my views during the course of arguments and also conveyed it to Hon''ble Senior member, even then bail order was dictated in open Court, therefore, for me occasion for dissent was when bail order was sent to me. The case laws would not apply if any order has not been passed Division Bench on the basis of consultation with another member. Nature of this case is the same.
Order Date :- 27.2.2017
Sd/-
Virendra Kumar-II. J."
2. The criminal appeal in which, the bail application was filed, arose from the judgment and order dated 31.8.2009 in S.T. No.531 of 1994, convicting the applicant under Sections 148, 302/149, 307/149 and Section 379 of the Indian Penal Code. The appeal was preferred by the applicant in 2009 itself and in 2012, the first bail application was filed and it was rejected by the Division Bench, vide order dated 24.4.2012. Thereafter, the second bail application was filed on 8.8.2012, bearing Criminal Misc. Application No.66948 of 2012. The application was heard in the open Court and the order granting bail, as stated by the learned senior Judge, was dictated immediately on conclusion of arguments. Thereafter, when the file/record was sent to the companion Judge on the Bench for his signature, he made an endorsement "I disagree with the view", that was expressed in open Court on 2.2.2017, and dictated his own opinion/order in Chamber on 2.2.2017, whereby he rejected the bail application. In this backdrop, the matter was once again placed before the Division Bench on 27.2.2017 when the order, as quoted above, was passed.
3. The question that has been formulated by learned senior member of the Division Bench for our consideration is "at which stage dissent to be indicated (by the companion Judge on the Bench), at the time of conclusion of dictation or during the course of discussion". In other words, "what should be the proper course of action, in a situation like this, for the companion Judge on the Bench when an order or a judgment is dictated in open Court, if he does not agree with the view expressed in the order/judgment".
4. Before we proceed further, at the outset, we make it clear that we are not entering into the merits of the case or expressing our opinion/view whether the applicant deserves bail or to even indirectly express who is in the right. We are also not entering into the controversy whether dissent was expressed/disclosed by the companion Judge on the Bench during the course of arguments and whether he conveyed it to the senior member of the Bench. According to the companion Judge on the Bench, he had disclosed and expressed his view during the course of arguments and also conveyed it to the senior member of the Bench. It, however, appears from the facts of the case that when the order granting bail was dictated in the open Court, advocates appearing in the case or the clients, if were present, were not informed by the companion Judge on the Bench that he did not agree with the view and that he would write his dissent order rejecting the bail application. We do not wish to make any comment on this controversy and we proceed to decide the question only on the basis of the record placed before us.
5. Two contentions have been raised before us. It was submitted that once the judgment was delivered in open court, it becomes operative and could not be changed. Secondly, it was contended that once the order had been dictated in the open court, the order to review or recall is not permissible in view of the provisions of Section 362, Cr P C. On these two grounds, it was submitted that the order dictated in the open court must be given effect to. When it was brought to the notice of learned counsel for the petitioner/applicant that the order dictated in the open court has not been signed by the companion Judge on the Bench, he prayed for placing the matter before a third Judge.
6. Though not identical but some what similar situations fell for consideration of the Supreme Court and High Courts, on different occasions. What appears from the judgments of the Supreme Court is that to write or pronounce a judgment is a judicial act, which must be performed in a judicial way. Pronouncement of judgment must be an expression of the mind of the Court, whether it is a single judge, or a division bench or a larger bench for that matter, at the time of delivery. Pronouncement of judgment is the first judicial act touching the view/opinion which the Court performs after the hearing. After conclusion of hearing if the judgment is reserved or the matter is closed for judgment, it is open to the Judges on the Bench to discuss, change their opinions, modify or persuade each other to take a particular view until a judgment is made ready, signed and pronounced in the open Court. Once that is done, it becomes the operative pronouncement of the Court. But that is not the situation in the present case. We would, therefore, like to see the trend of judgments over a period of time.
6.1 The first judgment touching the question is in Surendra Singh & Ors. v. State of Uttar Pradesh, 1954 SCR 330. In this case, the Allahabad High Court sitting at Lucknow, heard a criminal appeal and on 11th December 1952, judgment was reserved. Before judgment could be delivered, one of the Judges on the Bench was shifted to Allahabad. While there, he dictated a judgment treating it to be a judgment of both. He signed every page of the judgment as well as at the end, but did not put a date, and sent it to the companion Judge at Lucknow. On 24.12.1952, before the judgment was delivered, the Judge at Allahabad, who had authored the judgment passed away. On 5.1.1953, the Judge at Lucknow delivered the judgment of the Court. He signed it and dated it. In this backdrop, the question that fell for consideration of the Supreme Court was whether the judgment was a valid one. While dealing with the question, the Supreme Court in paragraphs 10, 11 and 12 of the judgment observed thus:
"10. In our opinion, 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 is merely signed after giving notice to the parties and laying the draft on the table for a given number of days for inspection.
11. 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".
12. Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of locus poenitentioe, and indeed last minute alterations often do occur. Therefore, however much 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 steps 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 Judge''s responsibility is heavy and when a man''s 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. As we have indicated, it is frequently the practise 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 dawn upon him before the delivery of judgment."
(emphasis supplied)
6.1.1 The Supreme Court, thereafter, considered the Full Bench judgment of the Calcutta High Court, consisting of nine Judges in Mahomed Akil v. Asadunnissa Bibee, 9 WR 1 FB and proceeded to observe in paragraphs 14 and 15 thus:
"14. As soon as the judgment is delivered, that becomes the operative pronouncement of the court. The law then provides for the manner in which it is to be authenticated and made certain. The rules regarding this differ but they do not form the essence of the matter and if there is irregularity in carrying them out it is curable. Thus, if a judgment happens not to be signed and is inadvertently acted on and executed, the proceedings consequent on it would be valid because the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of its subsequent authentication.
15. After the judgment has been delivered provision is made for review. One provision is that it can be freely altered or amended or even changed completely without further formality, except notice to the parties and a rehearing on the point of change should that be necessary, provided it has not been signed. Another is that after signature a review properly so called would lie in civil cases but none in criminal; but the review, when it lies, is only permitted on very narrow grounds. But in this case the mere fact that a Judge is dead and so cannot review his judgment does not affect the validity of the judgment which has already been delivered and has become effective. For this reason there is a distinction between judgments which have not been delivered and so have not become operative and those which have. In the former case, the alteration is out of court. It is not a judicial act. It is only part of a process of reaching a final conclusion; also there is no formal public declaration of the Judges'' mind in open court and consequently there is no "judgment" which can be acted upon. But after delivery the alteration cannot be made without notice to the parties and the proceeding must take place in open court, and if there is no alteration there is something which is final and conclusive and which can at once be acted upon. The difference is this. In the one case, one cannot know, and it would be against public policy to enquire, whether the draft of a judgment is the final conclusion of the Judge or is only a tentative opinion subject to alteration and change. In the second case, the Judge has publicly declared his mind and cannot therefore change it without notice to the parties and without hearing them afresh when that is necessary; and if there is no change the judgment continues in force. By change we mean an alteration of the decision and not merely the addition or subtraction of part of the reasoning."
(emphasis supplied)
6.2 In Vinod Kumar Singh v. Banaras Hindu University & Ors., (1988) 1 SCC 80, the Supreme Court was dealing with a situation where, after hearing the writ petition the judgment was dictated in open Court allowing the writ petition and issuing appropriate directions to the respondent-University. The appellant thereafter, applied for a certified copy of the judgment, but he was told that the matter was again in the hearing list and would be heard afresh. The matter continued to appear in the hearing list from September 1986 till February 5, 1987, when the particular Division Bench which had heard the matter released the case to be taken up by another Bench. On 23.3.1987, the writ petition was dismissed by the new Division Bench. In this backdrop, the contentions raised and considered were that once the judgment was delivered in open Court, it becomes operative and could not be changed and that the dismissal of the writ petition after it had been once allowed, was, therefore, without jurisdiction. The Supreme Court, after exhaustively quoting the views in Surendra Singh (supra), in paragraphs 6, 7 and 8 observed thus:
"6. The above observations were made, as already mentioned, in a case where the judgment had been signed but not pronounced in the open court. In the present case, we are concerned with a judgment that had been pronounced but not signed. The provision in Order 20, Rule 3 of the Code of Civil Procedure indicates the position in such cases. It permits alterations or additions to a judgment so long as it is not signed. This is also apparently what has been referred to in the last paragraph of the extract from the judgment of Bose, J. quoted above, where it has been pointed out that a judgment which has been delivered "can be freely altered or amended or even changed completely without further formality, except notice to the parties and re-hearing on the point of change, should that be necessary, provided it has not been signed." It is only after the judgment is both pronounced and signed that alterations or additions are not permissible, except under the provisions of section 152 or section 114 of the Code of Civil Procedure or, in very exceptional cases, under section 151 of the Code of Civil Procedure.
7. But, while the Court has undoubted power to alter or modify a judgment, delivered but not signed, such power should be exercised judicially, sparingly and for adequate reasons. When a judgment is pronounced in open court, parties act on the basis that it is the judgment of the Court and that the signing is a formality to follow.
8. We have extensively extracted from what Bose, J. spoke in this judgment to impress upon everyone that pronouncement of a judgment in court whether immediately after the hearing or after reserving the same to be delivered later should ordinarily be considered as the final act of the court with reference to the case. Bose, J. emphasised the feature that as soon as the judgment is delivered that becomes the operative pronouncement of the court. That would mean that the judgment to be operative does not await signing thereof by the court. There may be exceptions to the rule, for instance, soon after the judgment is dictated in open court, a feature which had not been placed for consideration of the court is brought to its notice by counsel of any of the parties or the court discovers some new facts from the record. In such a case the court may give direction that the judgment which has just been delivered would not be effective and the case shall be further heard. There may also be casesthough their number would be few and far between-where when the judgment is placed for signature the court notices a feature which should have been taken into account. In such a situation the matter may be placed for further consideration upon notice to the parties. If the judgment delivered is intended not to be operative, good reasons should be given."
(emphasis supplied)
6.3 A Division Bench of the Bombay High Court also considered a peculiar situation in Shri Mishrimal Jethmal Oswal v. The Municipal Council of Lonavala, AIR 2006 (Bombay) 190 to which one of us (Justice Dilip B. Bhosale) was a member. In that case, a Division Bench presided over by the then learned Chief Justice, Mr Justice Dalveer Bhandari (as His Lordship then was) and Mr Justice S J Vazifdar (as he then was) heard the arguments and reserved the judgment. The judgment was thereafter prepared by Mr Justice S J Vazifdar, and he forwarded a draft thereof to the learned Chief Justice. The learned Chief Justice signed the judgment in New Delhi on 27.10.2005 and on 28.10.2005, he was elevated as a Judge of the Supreme Court. By the time, the signed copy of the draft judgment was forwarded to Mr Justice S J Vazifdar, His Lordship the learned Chief Justice had ceased to be a Judge of the Bombay High Court, though it was signed by him as a member of the Division Bench. It is against this backdrop, Mr Justice S J Vazifdar, heard the learned senior counsel appearing for the parties on the question, whether he could pronounce the judgment. He answered the question in the negative, vide his order dated 20.12.2005 and that is how, the appeal under Clause 15 of the Letters Patent was placed before the Division Bench. The Division Bench (D B Bhosale, J. speaking for the bench) after considering the judgment in Surendra Singh (supra) and other judgments placed before the Bench, upheld the view taken by the learned Single Judge.
6.4 The Supreme Court in Kushalbhai Ratanbhai Rohit & Ors v. State of Gujarat, AIR 2014 SC 2291, while dealing with a petition against an interim order passed by the High Court of Gujarat in Criminal Appeal No.2012 of 2006, considered the question whether an order pronounced in the open Court could be reviewed or recalled in view of the provisions of Section 362 of the Code of Criminal Procedure. The question arose in the backdrop of the fact that the Criminal Appeal was heard and the order dictated in open Court, allowing the appeal on a technical issue. The said order was recalled by the Court suo moto with directions to hear the appeal afresh. The Court did so on the ground that it 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 in discharge of their duty where sanction under Section 197 of Cr PC would be attracted. While dealing with the question, the Supreme Court, once again, after referring to Surendra Singh (supra), in paragraph 4 observed thus:
"4. We do not find any forcible submission advanced on behalf of the petitioners 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. for the simple reason 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. In the instant case, admittedly, the order was dictated in the court, but had not been signed."
6.5 A similar question arose in Mohan Singh v. King-Emperor, 1943 ILR (Pat) 28 wherein the judgment was delivered by the High Court holding that the trial was without jurisdiction and a direction was issued to release the appellant therein. However, before the judgment could be typed and signed, the Court discovered that the copy of the notification which had been relied upon was an accurate copy and that the Special Judge had jurisdiction in respect of the offence under which the appellant therein had been convicted. The submission, in that case, that the Court did not have power to recall the order and hear the appeal de novo was rejected.
6.6 This Court in Sangam Lal v. Rent Control and Eviction Officer, Allahabad & Ors., AIR 1966 All 221 while dealing with a rent control matter, came to the conclusion that until a judgment is signed and sealed after delivering in court, it is not a judgment and it can be changed or altered at any time before it is signed and sealed. The judgments in Mohan Singh (supra) and Sangam Lal (supra) were quoted by the Supreme Court in Kushalbhai Ratanbhai Rohit (supra) after quoting the view as expressed in that judgment.
6.7 The Full Bench of the Calcutta High Court in Mallikarjuna Rao & Ors. v. The State of West Bengal, CRM No.3767 of 2016 (decided on 13.7.2016) considered the questions whether the Bench had become functus officio after rejecting the bail and at least after signing of the order by both the Judges; whether it was within the jurisdiction of one of the Judges of the Bench to pen through his signature on the original of the order after affixing signature and there has to be a finding also whether the order written by the said Judge is valid dissenting order necessitating reference to a third Judge in terms of clause 36 of the Letters Patent. From a bare perusal of the questions, the facts of that case and the present case, cannot be said to be identical.
6.7.1 In the case before the Calcutta High Court, both the Judges had signed the order and subsequently, the companion Judge scored out the signature and wrote a separate order taking exactly the opposite view, namely, granting the application for bail. In that case, the Full Bench, after considering the provisions of Section 353 of Cr P C and several other judgments, including the judgment of the Supreme Court in Surendra Singh (supra) answered the reference in the following terms:
"i. The Bench had become functus officio after the prayers for bail of the two petitioners were rejected on 20th May 2016, and signing of the order was effected by both the Hon''ble Judges on 6th June 2016. The Hon''ble Presiding Judge in this case had signed the order, however, on 20th May 2016. The order had assumed its final form after the same had been signed by the Hon''ble Judges.
ii. After the order of 20th May 2016 was signed by both the Hon''ble Judges, none of the members of the same Bench retained any jurisdiction to alter the order. In such circumstances, the act of penning through His Lordship''s own signature by one of the Judges of the Bench was beyond jurisdiction, and hence non est in law. In fact, the Hon''ble Companion Judge had become functus officio on 7th June 2016. Hence, the mode and manner in which the dissenting order was sought to be brought on record is wholly impermissible in law.
iii. The order dated 7th June 2016 is not a valid order. This order has been issued at a time the Bench had become functus officio. The order of 7th June 2016 is also flawed because it has been issued on a date these matters were not listed, and the parties were also not notified of this order. Such order is non est and void, and no legal recognition can be accorded to such order. The dissent expressed in the said order of 7th June 2016 does not have any validity in the eye of law, and in our opinion no reference to a third Judge in terms of Clause 36 of the Letters Patent is required to be made on the basis of this order. These two petitions stood rejected on 20th May 2016.
iv. In view of our opinion as aforesaid, the applications for withdrawal of the two petitions are dismissed as not maintainable."
6.8 A Division Bench of the Calcutta High Court in Amodini Dasee v. Darasan Ghose, (1911) ILR 38 Cal 828, while dealing with a some what similar situation, observed thus:
"When this Rule was heard on the 16th June last, we delivered judgment discharging the same, but on the same day, the case of Mir Ahwad Hossein v. Mahomed Askari was brought to our notice, and it subsequently appeared that we were under a misapprehension on the facts of the case. As we had not signed our judgment, we thought it proper to hear both the learned vakils again to-day.
It has been contended by the learned vakil for the opposite party that we cannot, having once delivered our judgment, review the same. We entertain no doubt that it is competent to us to do so. The terms of section 369 of the Criminal Procedure Code are general, and we have not signed our judgment. The same view may reasonably be inferred from the case of In the matter of the petition of Gibbons and a very extreme case is that of Queen-Empress v. Lalit Tiwari, where it was held that a judgment or order of the High Court is not complete until it is sealed in accordance with the Rules of the Court, and up to that time may be altered by the Judge or Judges concerned therewith without any formal procedure by way of review of judgment being taken."
(emphasis supplied)
7. Ordinarily, a judgment and order is not delivered till the hearing is complete after hearing the submissions of counsel and perusal of records and a definite view is reached by the court in regard to the conclusion. Once that stage is reached and the court pronounces the judgment, the same should not be reopened unless there be some exceptional circumstances or a review is asked for and is granted. Two situations are envisaged in which a judgment/order is pronounced (dictated). First, immediately on conclusion of the arguments, the situation as has arisen for our consideration in the instant case, and two, where the matter is closed for judgment and is pronounced on some subsequent date, may be by dictating it in the open Court or by simply pronouncing the operative portion of the prepared/ready judgment. If it is dictated in the open Court and if the other Judge does not agree with the view expressed (dictated) in open Court, he would have to pronounce his view/dissent immediately in the Court itself and if the prepared judgment is pronounced and signed in the open Court, the question of dissent would not arise. When the judgment is pronounced, parties present in the court know the conclusion in the matter and often on the basis of such pronouncement, proceed to conduct their affairs. If what is pronounced in the Court is not acted upon, certainly litigants would be prejudiced. A judgment pronounced in open court should be acted upon unless there be some exceptional feature and if there be any such cause, the same should appear from the record of the case.
8. In the present case, as observed earlier, we do not wish to enter into the controversy whether the companion Judge on the Bench had expressed his dissent in the course of arguments and conveyed it to the senior member of the Bench, and in that event what was the responsibility of the senior member of the Bench. We have considered the question referred to in light of the judgments noticed above and keeping in view the situation where the judgment/order granting bail was pronounced (dictated) in the open Court immediately on conclusion of arguments. In a case where the matter is closed for judgment/order on conclusion of the arguments, what transpires between the Judges in the process of making or preparing a judgment till the matter is again placed before the Court for pronouncement may not be relevant insofar as parties and the advocates appearing for them are concerned.
8.1 The Judges may, and often do, discuss the matter amongst themselves once it is closed for judgment. They exchange draft judgments and may, in a given case, as observed by the Supreme Court in Surendra Singh (supra), even sign the draft judgment. Even then, that is not a judgment until the final operative act, namely, its formal declaration in the open Court is made. That is what constitutes a judgment. Even judgments which are dictated and pronounced in the open Court can be altered or amended as long as the conclusion or operative portion thereof is not changed. A judgment that has been pronounced in the open court can be changed completely only after notice to the parties and a re-hearing on the point of change should that be necessary, provided it has not been signed. Once the judgment is both pronounced and signed, alterations or additions or a complete change of view is not permissible, except where review is asked for and is granted insofar as civil matters are concerned. (See: Vinod Kumar Singh (supra).
8.2 Once the judgment is pronounced (dictated) in the open Court on conclusion of arguments, the companion Judge on the Bench, if he does not agree with the view expressed in the dictated/pronounced judgment, he should express his dissent either by dictating his opinion/view immediately thereafter in the open Court itself or should at least inform counsel appearing for the parties and the parties, if they are present in the Court, that he does not agree with the view expressed by the senior (other) member of the Bench and that he would be delivering his judgment recording dissent in Chambers. If he fails to do so, the decision which is so pronounced (dictated) becomes a declaration of the mind of the Bench (Court) and becomes the operative pronouncement of the Court. After the judgment becomes the operative pronouncement of the Court, it can be altered or amended and, as observed earlier, even changed completely, only with notice to the parties and a re-hearing on the point of change should that be necessary, provided it has not been signed.
8.3 Having regard to the settled position of law, in the present case, the dissent ought to have been expressed in the open Court on conclusion of dictation by the senior member of the Bench. Mere expression of views in the course of arguments or only to the senior member of the Bench would not be sufficient. Silence or a lack of vocal assertion would in fact be indicative of a lack of dissent and may be liable to be viewed as concurrence of opinion and affirmation of the decision pronounced. The Judges sitting in a Division Bench, irrespective of their standing as a Judge inter se are equal in all respects. It is only for convenience that a senior member of the Bench is referred to as ''the senior member'' of the Bench and who leads the Bench and decides who has to write the judgment in a matter. This, however, does not stop the other member of the Bench from writing a concurring or dissenting view, if he so desires. Where a judgment is dictated in the open Court and, if one member of the Bench desires to express dissent, as observed earlier, he should do so in the open Court immediately on conclusion of the dictation by the other member of the Bench or at least inform the advocates/parties about his dissent at that stage itself and then prepare the dissent judgment/order in chamber if not pronounced (dictated) in open Court.
8.4 Though in the present case, the procedure, as stated by us in the light of the judgments of the Supreme Court and the High Courts, was not followed, the fact remains that the companion Judge on the Bench did not sign the judgment and dictated his order rejecting the application for bail. Keeping that in view and having considered the nature of controversy and the settled position of law, we direct the Registry to place the record of this case before the Chief Justice to refer this matter to a third Judge to express his opinion on the merits of the case.
9. We, accordingly, direct the Registry to place the record of this case before the learned Chief Justice, on administrative side, for referring this matter to a third Judge.
