The Judgment Sections 392 to 406

Section 392, BNSS 2023 — the substance

(1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their advocates — (a) by delivering the whole of the judgment; or (b) by reading out the whole of the judgment; or (c) by reading out the operative part and explaining the substance in a language which is understood by the accused or his advocate.

(4) Where the judgment is pronounced in the manner specified in clause (c), the whole judgment or a copy shall be immediately made available for the perusal of the parties or their advocates free of cost.

(5) If the accused is in custody, he shall be brought up to hear the judgment pronounced.

(6) If the accused is not in custody, he shall be required to attend to hear the judgment pronounced, except in the cases the section excepts.

(7) No judgment shall be deemed invalid by reason only of the absence of any party or his advocate on the day or from the place notified for its delivery.

And, newly: a copy of the judgment shall be made available to the parties immediately, and the judgment shall be uploaded on the portal of the Court within a period of seven days.

📖 Surendra Singh v. State of Uttar Pradesh, AIR 1954 SC 194

Facts: A judgment of a High Court had been written and signed by one of the two Judges who heard the appeal, but he died before it was delivered; the surviving Judge pronounced it. The question was at what point a judgment becomes a judgment.

Held: The Supreme Court held that a judgment 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. Until it is pronounced, it is not a judgment at all: a Judge may write and sign a document, and may change his mind at any time before delivery, because the mere writing out of a judgment is not enough. It is the act of pronouncing it in open court that gives it life and makes it the judgment of the Court. The Court held that the rule serves two purposes: it fixes the moment at which the decision becomes binding and from which time runs, and it ensures that the decision is announced publicly, so that the parties and the world learn of it at the same moment and in the same terms. It followed that the document in that case could not stand as the judgment of the Bench.

Ratio: A judgment is the final decision intimated to the parties by formal pronouncement in open court. Until pronounced it is not a judgment, and the mere writing and signing of a document does not make it one.

⚠ The requirement of reasons is the heart of section 393

The points for determination, the decision and the reasons are what distinguish a judgment from a conclusion. A judgment that states a finding without showing how it was reached gives the appellate court nothing to examine.

And the requirement hardens as the sentence grows. For an offence punishable with death or life, the judgment must state the reasons for the sentence; for a sentence of death, it must state the special reasons — a distinct and heavier obligation, because the ordinary sentence in such a case is imprisonment for life and death is the exception requiring justification.

Section 402 adds a further requirement in the other direction: where the Court could have dealt with a convicted person under section 401 — probation or release after admonition — and did not do so, it must record its special reasons for not doing so.

📖 Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770

Facts: A conviction was recorded and a sentence passed without the Court considering whether to award compensation to the victim, no application having been made. The question was whether the power to award compensation is a matter the Court must address of its own motion.

Held: The Supreme Court held that although the provision empowering a Court to award compensation is worded as a power, it carries with it a duty to apply the mind to the question in every criminal case. The Court held that the provision is intended to reassure the victim that he is not forgotten in the criminal justice system, and that it confers a duty on the Court to apply its mind to the question of compensation in every criminal case — whether or not an application is made. It followed that a Court must consider the question, and, if it decides not to award compensation, must record reasons for that decision, so that the omission can be examined on appeal. The Court held that an order which is silent on the question does not show that the mind was applied at all, and directed that all courts apply their minds to compensation in every case where a conviction is recorded.

Ratio: The power to award compensation carries a duty to apply the mind to the question in every criminal case. A Court must consider it whether or not an application is made, and must record reasons if it declines to award compensation.

Section 403, BNSS 2023

Save as otherwise provided by this Sanhita or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

⚠ What the bar covers, and what it does not

It covers a judgment and a final order disposing of a case. An interlocutory order is not within it, and may be varied as the case proceeds.

The only exception is a clerical or arithmetical error — a wrong figure, a mistaken date, a misspelt name. It is not a licence to reconsider a finding or to alter a sentence on reflection.

“Save as otherwise provided” preserves the express powers the Sanhita gives elsewhere — for instance the appellate and revisional jurisdictions, and the inherent power of the High Court under section 528.

The practical consequence is one that recurs throughout the Sanhita: a trial court that has signed its judgment is functus officio. A party who says the judgment is wrong must go to a superior court; he cannot ask the court that made it to think again.

The position stated shortly

1. Section 392: the judgment shall be pronounced in open Court immediately after the termination of the trial or at a subsequent time of which notice is given — by delivering or reading the whole, or by reading the operative part and explaining the substance in a language the accused understands.

2. A judgment is not a judgment until pronounced. The writing and signing of a document does not make it one: Surendra Singh.

3. Where only the operative part is read, the whole judgment or a copy shall be immediately made available free of cost. The Sanhita also requires the judgment to be uploaded on the Court’s portal within seven days.

4. An accused in custody shall be brought up to hear the judgment; one not in custody shall be required to attend, subject to the exceptions.

5. Section 393: the judgment shall contain the points for determination, the decision and the reasons; shall specify the offence, the section and the punishment; and on an acquittal shall state the offence and direct that the accused be set at liberty.

6. Where the offence is punishable with death or life, the judgment shall state the reasons for the sentence; and for a sentence of death, the special reasons.

7. Section 395 empowers an award of compensation, and that power carries a duty to apply the mind to the question in every criminal case, with reasons recorded if none is awarded: Ankush Shivaji Gaikwad.

8. Section 396: the victim compensation scheme, under which compensation may be awarded whether or not the offender is traced or identified. Section 398 is new: every State Government shall notify a Witness Protection Scheme.

9. Section 399: compensation for a groundless arrest, not exceeding one thousand rupees. Section 401: probation or release after admonition, with section 402 requiring special reasons where the Court does not so proceed.

10. Section 403: once a Court has signed its judgment or final order, it shall not alter or review it except to correct a clerical or arithmetical error. The court is functus officio; the remedy lies in a superior court.