JUDGMENT WRITING


”The Judgment should refer to the principles of law relevant to the determination of the dispute. If this is not done, then on an appeal it may be argued that the judge did not know what the principles of were or,indeed,did not know what he was deciding” — Honourable Dennis Mahony

Introduction:-

Judge speaks through judgment. Generally, as per view of the common man, a judgment to mean the ability of a judge to make considerable decisions. Legally, Section 2(9) of Civil Procedure Code,1908 defines the word ‘judgment’ to mean “a statement given by the Judge on the grounds of a decree or order”, However, this exact definition is absent in Criminal Procedure Code. To avoid confusion, any finding of a judge at the end of the proceedings of a suit, or appeal or revision or other interlocutory proceedings etc.,, within the four corners of law can be termed as a judgment. Every Judge will have his own style of writing judgments.

” The objective of codification to secure uniformity
where you can have it, diversity where you must have it,
but in all cases, certainty”. – Macauly
(Macauly, House of Commons, 10th July,1833)

The main purpose of the judgment is to communicate to the parties and other stakeholders the decision of the Court in regard to the litigation. A Judgment acts as a precedent and therefore it should carry the message for posterity. It should be understandable by even those who lost in the case.

How to begin a judgment:-

A judgment must begin with clear recital of facts of the case, cause of action and the manner in which the case has been brought to the Court. First of all, the Presiding Officer must have essential facts in mind, and its narration should be without any error or mistake. Presiding Officer is required to tell the parties of the decision, on the facts brought before him, with application of sound principles of law, his decision, and what the parties are supposed to do as a necessary consequent to the decision or to appeal against it.

Language and style of judgment:-

As I said earlier, proper use of English creates good impact. While writing a judgment, Judge shall give a brief prologue to introduce the theory of the case. Judge should avoid repeating pleadings and the law in the judgment. Presiding officer should set the scene simply and clearly. No long, winding and boring sentences should be written in the judgment. Judge may write judgment in a style he is comfortable with. It is advised to use clear sentence structures and organization. It is better to Identify characters before telling what they did. It is desirable to use spot citations like exact pages. Be formal, clear, simple and free of jargon. It is always better to use plain English. Of course, Latin phrases may be used sparingly where necessary and inevitable. Liberal use of Latin phrases becomes subject of criticism, In England, the Court observed “ I think the cases are comparatively few in which much light is obtained by the liberal use of Latin phrases. Nobody can derive any assistance from the phrase Novus acus interveniens until it is translated into English” (See. Ingram v. United Automobile Services Ltd.(1943) 2 All E R 71).

Language of the judgment:

Section 354 of Cr.P.C prescribes the language of the judgment and requires the points for determination, the decision thereon, the reasons for the decision that it shall be dated and signed in open court. His lordship KRISHNA IYER, J. observed as follows: ‘The Justice System ceases to be functional if courts do not make the technology of statutory construction serve the betterment of society. In Cardozo’s lofty diction: “We may figure the task of the judge, if we please, as the task of a translator, the reading of signs and symbols given from without. None the less, we will not set men to such a task, unless they have absorbed the spirit, and have filled themselves with a love, of the language they must read .” (1) If a broad and viable reading of statutory language were not adopted by Judges filled with the wish to make things work according to social justice courts may be classed with the dinosaurs.’’ It is always better to avoid use of complicated language or phraseology just for the fun of it. Use simple verbs and keep them as close to the subject which they refer as possible. A judgment should not be prolix or verbose. The language should be sober and temperate and not satirical or factious. It is always better to prefer to use active voice rather than using passive voice. Although good style is very much a matter of personal test, but the basic rules of grammar, structure and above all, common sense, should be applied.

Proper use of English Grammar:-

For easy understanding, proper use of Grammar and punctuation is always essential. Correct use of grammar definitely shows professionalism of a Judge and thereby it makes writing much easier to understand. Judge should go through judgments by superior courts and senior judges to appreciate the use of style and language in making judgments more professional. British English must be used at all times and American English must be discouraged. Latin phrases could be used if and when it is necessary to do so.

Before framing issues:

In a civil case, presiding officer must make an effort to settle the matter before Lok Adalat by following the procedure contemplated under section 89 of the Code of Civil Procedure,1908. If there is an element of settlement, after hearing both parties, the matter must be referred to Lok Adalat. If such effort is made, there is every chance to settle the matter in Lok Adalat at the first hearing itself. Therefore, hearing of the parties/advocates at the first instance is a duty of the presiding officer for settlement of a case. If no settlement is done, the judge should then proceed to frame issues. However, another significant factor is that at the first hearing of a suit, under Order 10, Rule 1 of C.P.C, after examination of parties, the Presiding officer shall record admissions and denials of the parties. Later, when it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment under Order XV, Rule 1 of C.P.C. this provision would save time of the Court and speedy relief would be come to the parties. Similarly, in a criminal case, when the charge against accused is groundless, accused should be discharged in warrant cases. On identifying compoundable criminal cases, those matters may be referred to Lok Adalat for recording amicable settlement.

Framing of Issues:-

An ‘Issue’ is a proposition of law or fact made by one party but opposed by the other. Framing of issues is probably the most significant part of the trial. Order 14 of CPC describes about framing of issues. In a civil case, each issue must be stated distinctly. Issues are of fact or law. Issues may also arise from mixed question of fact and law. It is always feasible to decide preliminary issues like jurisdiction of Court before going into the merits of the case. Issues of law may dispose of the case and may be tried first. Remember even after taking evidence, additional issues may framed. However, as was pointed out in Desi Kedri vs. Huzurabad Co-Operative Marketing Society Ltd.,, it was held that ”Issues need not be framed when there is no dispute with regard to material averments in the plaint.” The judgment should set forth the evidence on each issue sufficiently to show its nature, what it proposes to establish, and its credibility. Judge should frame issues properly.
Any error or mistake in framing of issues, value time of court would be wasted and hereby adjudication of such case would be delayed. Loaded issues should not be framed. Issues must be clear and specific. The formulation of issues, should be initiated as early in the proceedings as possible. In Board of Trustees of the Port of Mormugao Vs. V.M. Salgaokar & Brothers it has been laid down that Draft issues submitted by one party should not be mechanically adopted by the Court as it is primarily the duty of the judge to frame the issues in the cases. Once the parties are clear in their mind about the essential questions, they may shorten the proceedings. It also helps to focus the mind of the Judgeon the precise matters to be determined.

Set out points for determination:-
In a criminal case, it is the duty of judge to set out points for determination and to give decisions on each point in the judgment (Ref: Swaminathan Ambalam Vs. P.K.Nagaraja Pillai, 1973 Mad.110). It is the duty of the trial Court to refer to the evidence in respect of the points of the points at issue between the parties before he arrives at his findings; (Ref: R.K.Lukhoisna Singh Vs. Yumnam Laingam Singh, AIR 1961 Mani 10). A judgment containing findings without proper pleading and necessary issues is bad. Language of the judgment should not be unbalanced; Ref: D.Morcopollo & Co. (P) Ltd. Vs. D.D.Marcopollo & Co. (P) Ltd., Employees Union, 1958 SC 1012. A party, who has raised a contention which is available to him under the law, is entitled to a fair and proper hearing on that and to finding by the courts of fact on such contention; Ref: Minala Vs. Anchi Devi, AIR 1965 Pat 66. If it is a criminal trial, he may proceed to notice charges and in other matters, the points for determination within the periphery of which the evidence led by the parties can be marshalled and sifted and the arguments of their counsel examined. As to criminal case is concerned, Section 354 of the Code of Criminal Procedure provides that the judgment should contain points for determination for decision and the reasons for such decision. Framing of issues in a civil case and charges in criminal trial are the essential requirements of law.

Burden of proof:-

The concept of burden of proof is explained in Sections 101 to 114 of the Indian Evidence Act,1872. Presiding officer must keep in mind the rules of determining burden of proof and the statutory exceptions to the general rules thereon. It is always essential to remember to state vividly and correctly who bears the burden to prove the case or issue stated and to what standard. In criminal cases, the principle is beyond all reasonable doubt whereas in civil cases, it is on the preponderance of probabilities with some exceptions where fraud is pleaded.

Application of the law to the facts of the case:-
Judgment should refer to the principles applicable as to the case law and the statutory law. Application of the law the facts of a case is the crux of judgment writing. What we call appreciation of evidence in the judgment is done at this stage. Judge should evaluate the evidence as a whole for the both sides. This is where the ratio decidendi is stated and the case is decided finally.

Avoid Loading Judgment with Citations/Authorities:-
When several authorities are brought before court, Judge should apply only relevant cases and distinguish those he considers not applicable. It is significant to note that judgment should not be loaded with several authorities. Only relevant authorities must be referred to in the judgment. It is good to avoid loading judgment with authorities. While writing a judgment, the task of the Judge is such that reference should be made to arguments for both sides, apply the law objectively and draw a conclusion on each issue/point for determination. No doubt, it is true that the case annotations are an important research tool. While referring to a case citation, if authority is required, it is suggested that only the leading or most cogent authority is used. Do not write ‘in the case of Y v Z’. This is tautologous. Rather use ‘In Y v Z’ or ‘Y v Z decided that . . .’. Where there are several parties the reference in the reports will be to ‘others’ or ‘another’. The preferred citation M/S Kranti Asso. Pvt.ltd. & Another v. Masood Ahmed Khan & Others. In subsequent references to a case omit ‘another’ and ‘others’ unless either is necessary to make sense of what is being written.

How to quote citations ?
Avoid quoting editor’s not in judgments. The Editors do not deliver judgments but prepare Head-note/placitum according to their understanding. (Akhilesh Jindani (Jain) And Anr. vs State Of Chhattisgarh, 2002 CriLJ 1660). In Prakash Amichand Shah vs State Of Gujarat & Ors , 1986 AIR 468, the Hon’ble Five Judges Bench held that ‘a decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be bindings as a precedent in a case which comes up for decision subsequently. Hence, while applying the decision to a later case, the Court which dealing with lt should carefully try to certain the true principle laid down by the previous decision. A decision often takes its colour from the questions involved in the case in which it is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation’. Presiding officer must go through the entire judgment to understand the ratio laid down in it.

Potent factors while writing judgment in criminal side:-
Essential elements that constitute a crime charged are to be considered. Generally, every crime except for those crimes of strict liability, have elements for both the mes rea and actus rue. Ingredients should be stated clearly and fully resolved one by one in logical order to ensure the judgment flows. Remember that judge speaks through judgment to the parties and other stakeholders. The judgment should quote the charges as the case may be immediately after the narration of facts of the case. Chapter XXVII of the Code of Criminal Procedure, 1973 provides for ‘the Judgment’. Section 353 requires the judgment in every trial to be pronounced in open Court immediately after the termination of the trial, or at some subsequent time of which notice shall be given to the parties or their pleaders.

The judgment , as provided in Section 354, is to be written in the language of the Court. and that it shall contain the point or points for determination, the decision thereon and the reasons for the decision. This section also explains that the judgment shall specify the offence (if any) of which, and the section of IPC, or other law under it, accused is convicted and punishment to which he is sentenced. If the judgment is of acquittal, it shall state the offence of which the accused is acquitted and direct that accused should be set at liberty, if he is in judicial custody and his presence is not required in other case. Property order should carefully be noted in the result portion. In case of conviction for an offence punishable with death or in the alternative with imprisonment for life, the judgment has to state the reasons for sentence awarded and special reasons for death sentence. In case of conviction with imprisonment for a term of one year or more, a shorter term of less than three months, also requires the Court to record reasons for awarding such sentence unless the sentence is one of imprisonment, till the rising of the Court or unless the case was tried summarily under the provisions of the Code. As to passing certain orders under Section 117 (for keeping peace and for good behaviour), Section 138(2) (confirming order for removal of nuisance), Section 125 (for maintenance) and Section 145 or 147 (disputes as to immovable properties), the Code of Criminal Procedure, 1973 provides in sub-section (6) that order shall contain the point or points for determination, the decision thereon and the reasons for the decision.

Section 355 of the Code further explains a summary method of writing judgment by Metropolitan Magistrate, giving only particulars regarding the case, name, parentage and residence of the accused and complainant, the offence complained of or proved; plea of the accused and his examination (if any); the final order and the date of order, and where appeal lies, a brief statement of the reasons for the decision.The order to pay compensation where the Court imposes sentence or fine; order of compensation for groundless arrest and the order to pay cost in non-cognizable cases, may be made with the judgment under Sections 357, 358 and 359 of the Cr.P.C. Section 360 Cr.P.C says  to release on probation and special reasons in certain cases where the Court deals with accused  under Section 360 of Cr.P.C or The Probation of Offenders Act, 1958. Section 357-A of Cr.P.C should be kept in mind for awarding compensation to the victim. As was held by the Hon’ble Supreme Court of India, even interim compensation can be granted to victim in criminal cases. Name of the victim in cases like rape, outrage of woman etc., should be avoided.

Appreciation of evidence:-
While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. (Ref: State Of U.P vs Krishna Master & Ors).
Appreciation of evidence in criminal case differs to that of the appreciation of evidence in civil case because in criminal cases, the prosecution has t prove the guilt of accused beyond all reasonable doubt whereas in civil case, the case should be disposed of on principle of preponderance of probabilities. The truth or otherwise of the evidence has to be weighed pragmatically.
A salient feature is such that a court ought to satisfy itself from the evidence whether the conditions under which the identification is claimed to have been made were or were not difficult and to warn itself of the of the possibility of mistaken identity. The Court should then proceed to evaluate the evidence cautiously and carefully so that it does not convict or uphold a conviction, unless it is satisfied that mistaken identity is ruled out. To fulfill this task, the Court must consider the evidence as a whole, namely the evidence if any, of factors favouring correct identification together with those rendering it difficult. It is trite law that no piece of evidence should be weighed except in relation to all the rest of evidence. The court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the party. After careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.

Avoid harsh or disparaging remarks against persons and authorities:
As was pointed Niranjan Patnaik vs. Sashibhusam Kar & Another., 1986 (2) SCR 47, harsh or disparaging remarks are not to be made against persons and authorities whose conduct comes into consideration before courts of law unless it is really necessary for the decision of the case. Use of intemperate language or making disparaging remarks against any one unless that be the requirement for deciding the case, is inconsistent with judicial behaviour. In the case of State of M.P. v. Nandlal Jaiswal & Others, (1986) 4 SCC 566, his Lordship Bhagwati, Hon’ble Chief Justice, held : “We may observe in conclusion that judges should not use strong and carping language while criticizing the conduct of parties or their witnesses. They must act with sobriety, moderation and restraint. They must have the humility to recognize that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and result in injustice.”

The decision on each and every issue framed or points formulated :
The Judge/Magistrate may thereafter proceed to decide the issues or the points for determination, in the order they are framed. Likewise if it is a criminal trial, findings should be recorded charge wise. He should discuss the arguments of each party with reference to their evidence relevant to the issue / point in the question. Evidence of each of the issue / point should be sifted in the context of arguments raised. The Presiding Officer should record his finding on each of such issues by supplying his own reasons and giving logic for his doing so and not just by accepting the case of one party or rejecting that of the other. Findings on each of the points should be recorded in such a manner that they remain cohesive and linked to each other. The judgment should be sound reasoned. As was pointed out in Makhan Lal Bangal v. Manas Bhunia [2001 (2) SCC 652], the issues are important as they determine the scope of a trial by laying down the path for the trial to proceed, free from diversions and departures.

Reasons for decision:-
A bald decision unsupported by any reasons has not really been countenanced or recognised as a judicial decision. (See. Bansi And Ors. vs Hari Singh And Ors. AIR 1956 All 297). What is required is a reasoned judgment and not reasons for the judgment. As was observed by the Hon’ble Apex Court in catena rulings, the necessity of giving reasons flows as a necessary corollary from the rule of law which constitutes one of the basic principles of our constitutional set up. (Ref: Ram Murti Saran vs State Of U.P. And Ors; AIR 1971 All 54). It is bad to consider only one side in isolation of the other. Judgeshould give clear and sound reasons for the decision and demonstrate that both sides have had their propositions considered. In the judicial sphere reasons have always formed an integral part of the decision in a broad sense. Never consider one side in isolation of the other.

Justice delayed is Justice denied:-
Time is of the essence in the delivery of justice. Delay in handing down the decision increases their agony and frustration. Of course, Justice hurried is Justice buried . What is more important is that litigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments. (Ref: R.C.Sharma Vs. Union of India {(1976)3-SCC-574}). It is the duty of the Court that judgment should be delivered at the earliest possible time. Order XX Rule 1 of CPC in its proviso requires that every endeavour should be made by the Court to pronounce the judgment within thirty days from the date on which the hearing of the case is concluded and if it is not practicable to do so on the ground of the exceptional and extraordinary circumstances of the case, the Court should fix a future date for pronouncement of the judgment which should ordinarily be not beyond sixty days from the date on which the hearing of the case was concluded. Coming to criminal cases are concerned, the Hon’ble Supreme Court in HUSSAINARA KHATOON vs. STATE OF BIHAR [AIR 1979 SC 1364] has held that “a system of criminal procedure which did not prescribe a speedy trial could not be said to be either fair or reasonable and speedy trial is of essence to criminal justice and there can be no doubt that the delay in trial by itself constitutes denial of justice”.

Clerical and arithmetical mistakes:-
The presiding officer should take care to ensure that there are no substantial/major change in the judgment. However, if any clerical or arithmetical errors are found, those can be rectified in the interest of both parties. Sections 152 and 153 of CPC can be invoked to correct the clerical and arithmetical mistakes or to make clerical corrections. Ref: Smt. Thimmamma vs Sri H. Eshwarappa (2015). The Hon’ble Apex Court in Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1 SCC 169: (2000 AIR SCW 3848: AIR 2001 SC 43: 2001 Cri.LJ 128), held that Section 362 of the Criminal Procedure Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or the same except to correct a clerical or an arithmetical error and that this section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by the Court of competent jurisdiction.

Conclusion:-
Judge is required to tell the parties of the decision, on the facts brought before him, with application of sound principles of law, his decision, and what the parties are supposed to do as a necessary consequent to the judgment or to appeal against it. Judge should consider the evidence as a whole before deciding case finally. After judgment is ready, and before pronouncing judgment in open court, the presiding officer must carefully check the entire judgment and in case of any spelling mistakes are found, those should be corrected then and there itself. Beware of copying data from the computers. At most care should be taken while copying text from the computers/internet. It is always to profit worth to avoid to refer to the educational qualifications of a judge in the judgment. Parties come to Court because they are aggrieved. Write judgments regularly as a way of practicing and perfecting the science and art of writing understandable judgments.

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1 Comment (+add yours?)

  1. Shah mohitkumar
    Dec 07, 2015 @ 16:00:35

    Nice article

    Reply

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