Judgment:
ORDER
Hiremath, J.
1. The learned Single Judge has made a Reference in this matter to a Division Bench to be heard and decided by it under Section 9 of the Karnataka High Court Act of 1961 (Karnataka Act 5 of 1962). According to the learned Judge, a controversy has arisen as to the power of the Judge to alter or modify the Judgment delivered by him but not signed in view of some of the Decisions of this Court and of the Supreme Court.
2. The matter for consideration arises in the following manner: The petitioners challenged the order of the Addl.Sessions Judge, Raichur, in Crl.Revision Petition No. 116/1988 dismissing the revision petition filed by the present petitioners against the order of the C.J.M. Raichur in C.C.No. 256/1988 directing issue of process against them for the offences under Sections 324, 323, 506, 147, 148 and 498-A IPC read with Section 4 of the Dowry Prohibition Act. I n the petition, it is contended that the process ought not to have been issued as there was violation of the mandatory provisions of Section 204 of the Code of Criminal Procedure (for short 'the Code') inasmuch as a list of witnesses was not given with the complaint. Sub-section (2) of Section 204 of the Code says that no summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed. On the date of hearing as the order dictated by the learned Judge indicates, Sri Kashinathrao Patil for Sri Ashok Patil appearing for the petitioner and Sri Kantharaj, Government Pleader were heard on the short point involved and the learned Judge dictated the order in open Court on 29.1.1992. He found no merit in the Petition and Revision Petition deserved to be dismissed. Accordingly, the same was dismissed.
3. On 30.1.1992, i.e., the very next day of dictation of this order in open Court, learned Counsel for the petitioners applied to the Court under I.A.IV to recall the order made on 29.1.1992 and to hear him in the interest of justice and equity. Inter alia he stated that when the matter was called on the morning of 29th a representation was made on his behalf seeking passing over, however, the Court was pleased to dictate the order dismissing the Petition on merits taking the Counsel who represented for a pass over as heard. The petitioner's Counsel has also stated that he mentioned to the Court soon after the order was dictated in the forenoon itself that he had a substantial point to urge in the case and the Court instructed to Stenographer not to type the order dictated and directed the matter to be called in the afternoon. In the post lunch session the Court directed him to file an application to recall the order made on 29.1.1992. This is how this application with this prayer came to be made before the Court.
4. Learned Judge having made Reference to these events leading to these events leading to the filing of this Petition referred to the Decisions of this Court in the case of KESHSVA MURTHY v. VEERAIAH, : ILR1987KAR2285 and SEENAPPA SHETTY v. BHUJANGA SHETTY, : ILR1991KAR3854 as well as of the Supreme Court in the case of VINOD KUMAR SINGH v. BANARAS HINDU UNIVERSITY AND ORS., : [1988]1SCR941 , GIRIDHARILAL v. PRATAP RAI MEHTA, : ILR1989KAR2491 and came to the conclusion that propriety demands that this case should be referred to the determination and Decision of a Division Bench in order that the controversy in this behalf is set at rest.
5. We may make it clear, at the out set, that practically there is no conflict between the Decisions in the cases of Seenappa Shetty and Giridharilal inasmuch as the points arising in the two cases were not similar, while in the case of Seenappa Shetty (supra) the Judgment was complete having been signed by the Judge, learned Single Judge held that there is no statutory provision for recalling the order passed on merits by the same Court unless the same order is annulled by superior Court. This obviously means that there should be finality for judicial orders and it is so reflected under Section 393 of the Code. In this Decision though reference has been made to Section 362 of the Code it is not stated anywhere that a judgment which was already dictated in open Court but not signed was sought to be recalled. In another case coming up before K.B.Navadgi J. in the case of MANI C. v. STATE OF KARNATAKA, 1987 (2) KLJ 404 the learned Judge observed that the signature of Judgment completes the Judgment but before signature has been appended to it the Judgment is not complete and High Court is competent to review the Judgment which is pronounced but not signed. Section 362 of the Code is as follows:
'362. Save as otherwise provided by this Code 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.'
This Section corresponds to Section 369 of the Code of 1898. Thus before the learned Referring Judge the point for his consideration was whether the Judgment which is not signed but dictated in open Court could be interfered with or altered even on merits after giving opportunity to the parties seeking it to be heard on merits. The learned Judge has also kept the order that was dictated by him but not signed in the records of the case.
6. Whether in such a situation the power under Section 9 of the Karnataka High Court Act could be invoked has received our anxious consideration. Section 9 of the Act says:
'9. Other powers of Single Judge:- The powers of the High Court in relation to the following matters shall be exercised by a Single Judge, provided that the Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two Judges.'
Thus the proviso clearly states that the Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by the Bench of two Judges. When the matter is so adjourned with the opinion of the learned Single Judge before whom the matter has come up for being heard and determined by Bench of two Judges, the entire matter goes to the Bench of two Judges to be heard and determined by them irrespective of the nature of points involved. It may be mentioned here that the learned Judge acting under Section 9 of the Act did not refer the entire matter in the Criminal Petition for being heard and determined by the Bench of two Judges. He found controversy with regard to the power of a Judge under Section 362 of the Code and this is how the matter has been referred to the Bench of two Judges. Virtually it is an Interlocutory Application I.A.IV that is now referred for being decided by a Bench of two Judges.
7. In this behalf a Bench Decision of this Court in the case of AZEEZUDDIN v. STATE, ILR (Karnataka) 1978(2) 1194 rendered by His Lordship Venkatachalaiah has made the position clear. It states that there are no express provisions in the Karnataka High Court Act, 1961 which enable a Single Judge in the course of the hearing of the criminal appeal, to retain the appeal itself on his file and formulate a question of law, and refer the same for the opinion of a larger Bench. Where a Single Judge hearing a criminal appeal formulates a question of law and refers it for the opinion of a larger Bench the same is not competent. The appeal including the question of law formulated by the Single Judge, has to be heard and decided by the Single Judge. Reference was made to an earlier Decision of this Court in the case of SHIVADEVIAMMA BY L.RS. AND ORS. v. SUMANAJI AND ORS., 1973(1) Mys. L.J. 364.
8. We are in respectful agreement with this Decision. As we have already pointed out, the only point involved is whether the learned Judge has or has no power to alter the Judgment which is not signed. The Supreme Court in the case of Vinod Kumar Singh v. Banaras Hindu University to which a reference has also been made by the learned Single Judge and reported in : [1988]1SCR941 though arising in a civil matter under Order 20 Rule 3 CPC has made it clear that 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. Thus it is for the learned Judge to determine whether the circumstances contemplated by the Supreme Court in the aforementioned Decision prevail in the instant case keeping in view the events that occurred before him before this application I.A.No. IV came to be filed. In our view this Reference itself is not competent. With these observations we reject the Reference and direct, the matter to be sent back to the learned Single Judge for being decided on merits.