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TMI Blog1988 (7) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... e commencement of the hearing Shri Dave appearing for M/s. Jayshree Textiles submitted that so far as his client is concerned there is no point of difference to be resolved since both the Members of the West Regional Bench had held in favour of his client and had ordered allowing that appeal. In the circumstances he submitted that there may not be any occasion for him or his client to participate in these proceedings. He requested Shri Chandrasekharan, Advocate appearing for the Department, to confirm whether it would be so. Shri Chandrasekharan then submitted that he could not affirm the same, since the Department was raising several objections which go to the root of the matter as to the right of this Bench to hear any submissions in this matter. Proceedings were then continued in the light of the above. 4. Shri Chandrasekharan, appearing for the Department, submitted that he would be raising 3 objections as to the validity of the proceedings before us. They were : (i) there is no valid order of the West Regional Bench out of which any reference under Section 129C(5) could arise and hence we were not entitled to hear the matter; (ii) in any event the Section requires the tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard by two Judges of the Allahabad High Court (Lucknow Bench) on 11-12-1952. Judgment was reserved on the conclusion of the hearing. Before the judgment could be delivered by the Bench, one of the Judges (Bhargava, J.) was transferred to Allahabad. At Allahabad he dictated the judgment (for himself and on behalf of his brother Judge) and signed the same at every page as well as at the end but did not date it. He sent the same to the other Judge at Lucknow (Kidwai, J.). Bhargava, J., thereafter died on 24-12-1952. On 5-1-1953 Kidwai, J. delivered the judgment sent to him by Bhargava, J. and signed it and dated the same as 5-1-1953. In the appeal to the Supreme Court the accused contended that there was no proper judgment of the Bench of the High Court which heard their appeal. This was on the basis that the date of judgment was 5-1-1953 but that on 5-1-1953 there could not have been a Bench to deliver the judgment as one of the Judges had died earlier. The Supreme Court accepted this contention and allowed the appeal directing that the appeal before the High Court shall be reheard by a proper Bench. Shri Chandrasekharan contends that the same reasoning would apply in the present i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear submissions on the points referred to therein could be traced to the right conferred on the Bench under Section 129C(5). If that right is questioned [on the ground that there is no proper order at all under which proceedings could be taken under Section 129C(5)j it cannot be said that the Bench before which this argument is raised is not competent to hear the said submissions (on the ground that the Bench has been constituted by the President). 8. In the case of Surendra Singh (supra) the Supreme Court made certain observations as to what would constitute a judgment or order, when the matter had been heard by a Bench of Judges. It took into consideration the fact that the matter before the Court arose out of criminal proceedings. However, it laid down certain general principles as to what would constitute a judgment, irrespective of whether the matter arose in a Civil or a criminal matter or even otherwise. It is no doubt true that the observations of the Supreme Court were with reference to requirements of judgments or orders of Courts, which are always intimated to the parties, and to the world at large, by formal pronouncement or delivery in open court. A question may aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nged 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 makes 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 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 investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each of the memoranda sent in on the present occasion were a judgment, there would be nine judgments in one case, some deciding one thing and some another, and each Judge would have to review his own judgment separately, if a review should be applied for. We do not agree with everything which fell from the learned Chief Justice and the other Judges in that case but, in our opinion the passages given above embody the true rule and succinctly explain the reasons for it. 10. It would be clear from the above that the Supreme Court came to the conclusion it did taking into consideration the circumstance that an order of the Bench does not become final until the members of the Bench have had an opportunity to discuss the matter after, in suitable cases, drafts are prepared by the different members expressing different opinions and after such discussion either an agreed judgment emerges or the members decide to adhere to the opinion originally expressed and, thereafter, pronounce or issue separate orders. The Supreme Court held that unless there was such an opportunity for a discussion until the date of the final order, the drafts prepared, or even the fair judgment prepared by one or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely so that it may be included in the judgments under which the matter was being disposed of by the Supreme Court, the urgency for the judgment being immediately prepared being the impending retirement of the Chief Justice who was also one of the members of the Bench and whose judgment was the leading judgment. This would also in a way support the contention for the Department before us, that if a matter heard by a Bench of Judges is to be properly and legally disposed of, the judgment of all the members of the Bench should be ready and signed and either delivered or issued when all the members are serving and that, otherwise, it would not be a proper judgment if it is announced or issued after one of the members had retired. 14. Shri Srinivasan submitted that the defect if any is only in the matter of procedure and would not affect the validity of the judgment. In view of the discussion earlier, and in view of the observations of the Supreme Court, we are unable to accept the contention that the defect (in that one of the members signed the judgment after the other had retired from service) was one of procedure only. He has referred to the decisions in Commissioner of Income tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be of the Bench. It would be unnecessary to look into the rule for a further stipulation that unless all the members constituting the Bench were available on the date of the final order the order purported to be issued would not be valid. 16. We are, therefore, satisfied, for the reasons mentioned earlier, that there is no valid order of the West Regional Bench in pursuance of which action could have been taken under Section 129C(5) of the Customs Act. As earlier mentioned, the jurisdiction of this Bench to hear the matter would arise under the statute as well as under the order for constitution of this Bench by the competent authority in terms of that Section. Since we have held that there is no valid order of the West Regional Bench in pursuance of which further proceedings could be held under Section 129C(5), it appears to us that it would be unnecessary, for the purposes of this case, to go into the other questions such as the proper formulation of the points of difference or the validity of the order dated 8-12-1987 of the Senior Vice President constituting this Bench. As earlier mentioned, even if the findings on these two points are to be against the Department this B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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