PETITIONER:
SASHI MOHAN DEBNATH AND OTHERS
Vs.
RESPONDENT:
THE STATE OF WEST BENGAL
DATE OF JUDGMENT:
19/11/1957
BENCH:
IMAM, SYED JAFFER
BENCH:
IMAM, SYED JAFFER
BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
KAPUR, J.L.
GAJENDRAGADKAR, P.B.
CITATION:
1958 AIR 194 1958 SCR 962
ACT:
Sessions Trial-Reference-Judge agreeing with jury's verdict
of non-guilty on some of the charges but in disagreement
with the verdict of guilty in respect of others-If must
refer the whole case against the accused-Recording of
judgment of acquittal in agreement with the jury's verdict-
Legality-High Court, if can act on a Partial reference-Code
of Criminal Procedure (Act V of 1898), ss. 307, 306.
HEADNOTE:
Sections 306 and 307 of the Code of Criminal Procedure, read
together clearly indicate that where the Sessions judge
disagrees with the verdict of the jury and is of the opinion
that the case should be submitted to the High Court, he must
submit the whole case against the accused, not a part of it.
If the jury returns a verdict of guilty in respect of some
charges and notguilty in
961
respect of others he cannot record his judgment of acquittal
in respect of the latter charges in agreement with the jury
in contravention of the mandatory provision Of s. 307(2) of
the Code. Such recording must have the effect of preventing
the High Court from considering the entire evidence against
the accused and exercising its jurisdiction under S. 307(3).
Hazari Lal's case, (1932) 1. L. R.//Pat. 395 and Ramjanam
Tewari, (1935) I. L. R Pat. 7I7, approved.
Emperor v. jagmohan, 1. L. R. (1947) Allahabad 240, and
Emperor v. Muktar, (1943) 48 C.W.N. 547, disapproved.
The Emperor v. Bishnu Chandra Das, (1933) 37 C.W.N. 1180,
King Emperor v. Ananda Charan Ray, (1916) 21 C.W.N. 435, and
Emperor v. Nawal Behari, (1930) I.L.R All. 881, considered.
Consequently, in a case where eight persons were put up for
trial in the Court of Session charged under ss. I47 and
304/I49 Of the Indian Penal Code and four of them were
further charged under s. 201 of the Indian Penal Code and
the jury returned a unanimous verdict of not guilty under S.
304/I49 and guilty under ss. 147 and 201 and the Judge
accepting the former recorded a judgment of acquittal in the
case of each accused but disagreeing with the latter
referred the matter to the High Court, the reference was
incompetent and the High Court was in error in acting upon
it and its judgment must be set aside.
Held further, that although the proper order in such a case
should be to remit the case to the trial court for disposal
according to law, in view of the long lapse of time and
peculiar circumstances of this case the reference must be
rejected.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 114 of
1954.
Appeal from the judgment and order dated July 21, 1954, of
the Calcutta High Court in Reference No. 6 of 1954, under
Section 307 of the Criminal Procedure Code made by the
Additional Sessions Judge, 24 Parganas at Alipore on the
June 7, 1954, in Sessions Trial No. 2 of May, 1954.
S. C. Isaacs, and S. N. Mukherjee, for the appellants.
A. C. Mitra, D. N. Mukherjee and P. K. Bose, for the
respondent.
1957. November 19. The following Judgment of the Court was
delivered by
IMAM J.-In this appeal by special leave the substantial
question for consideration is whether the reference made to
the Calcutta High Court by the
962
Additional Sessions Judge of Alipur under s. 307 of the Code
of Criminal Procedure (hereinafter referred to as the Code)
was competent and, if not, whether the High Court acted with
jurisdiction in convicting or acquitting any of the accused
who were tried by the Additional sessions Judge and a jury.
There were eight accused on trial in the Court of Session
all of whom were charged under ss. 147 and 304/149 of the
Indian Penal Code. Four of them, namely, accused No. 1,
Sashi Mohan Debnath, accused No. 2, Rajendra Debnath,
accused No. 3, Manindra Debnath and accused No. 6, Rohini
Kumar Debnath were further charged under s. 201, Indian
Penal Code. The trial Judge delivered a charge to the jury
which was favourable to the accused. The jury returned a
unanimous verdict of not guilty under s. 304/149 of the
Indian Penal Code, which the learned Judge accepted. He,
accordingly, acquitted all the accused charged with this
offence. The jury, however, with respect to charges under
ss. 147 and 201 of the Indian Penal Code returned a
unanimous verdict of guilty against the accused charged with
these offences. The trial Judge disagreed with this verdict
and made a reference under s. 307 of the Code to the High
Court, being of the opinion that the accused were not guilty
of these offences. The High Court accepted the reference in
part and in agreement with the jury’s verdict of guilty
under ss. 147 and 201 of the Indian Penal Code convicted the
accused Sashi Mohan Debnath, Rajendra Debnath, Sudbanshu
Kumar Debnath, Dinesh Chandra Debnath and Bonomali Das under
s. 147 of the Indian Penal Code and sentenced each of them
to undergo one year’s rigorous imprisonment and the accused
Sashi Mohan Debnath and Rajendra Debnath under s. 201 of the
Indian Penal Code and sentenced each of them to undergo
rigorous imprisonment for three years. The sentences with
respect to the accused Sashi Mohan Debnath and Rajendra
Debnath were ordered to run concurrently. The High Court
did not accept the verdict of the jury with respect to the
accused Manindra Debnath and Gouranga Debnath under s. 147
of the Indian Penal
963
Code and under s. 201 against Manindra Debnath and Rohini
Kumar Debnath and acquitted them.
The present appeal is by the accused Sashi Mohan, Debnath,
Rajendra Debnath, Sudhanshu Kumar Debnath and Bonomali Das.
When the appeal came on for hearing on September 12, 1956,
it was found necessary by this Court to have the appeal
heard in the presence of the accused No. 3, Manindra
Debnath, accused No. 6, Rohini Kumar Debnath and accused No.
8, Gouranga Debnath. The reason for issuing notices upon
them has been fully stated in the order passed that day.
Accordingly, notices were issued to these accused and they
were served upon Manindra Debnath and Gouranga Debnath. So
far as Rohini Kumar Debnath was concerned, it was reported
that he could not be traced and no one could say where he
had gone after selling all his properties and that no
relative of his could be found. None of these three accused
have entered appearances in this Court.
It is unnecessary to refer either to the facts concerning
the occurrence or the case of the prosecution and the
defence, as the only question for decision before us is a
question of law. Indeed, no submissions were made either on
behalf of the appellants or on behalf of the respondent on
the facts of the present case.
In order to determine whether the reference made under s.
307 of the Code by the Additional Sessions Judge of Alipur
was competent, it is necessary to examine the provisions of
that section and consider some of the decisions of the High
Courts in India in this connection. But before we do this,
some general considerations concerning trials by jury and
interference with their verdict by the High Court may be
stated. The scheme of the Code clearly suggests that at a
trial in the Court of Sessions the trial can be either with
the aid of assessors or by a jury depending upon whether the
offence for which the accused was,, being tried was triable
with the aid of assessors or by a jury. The Code even
contemplates a trial of the accused for certain offences
which were triable with the aid of assessors and other
offences which were triable
964
by a jury at the same trial, in which case the jurors acted
as assessors for the offences which were triable with the
aid of assessors. Although a trial by a jury was provided
for by the Code, it did not compel the judge to accept the
verdict. It permitted him to disagree with it but did not
permit him to record a judgment unlike the case of a trial
with the aid of assessors where the Judge could disagree
with their opinion and record a judgment. The purpose of
the Code was to regard the jury’s verdict as of sufficient
importance to prevent the Judge in the Court of Session from
recording a judgment if the Judge disagreed with it. It was
considered that if the verdict of the jury was to be
displaced, it must be displaced, if at all, by the High
Court which must give due weight to the opinion of the jury
and the Judge and after considering the entire evidence. In
other words, the High Court could do what the jury did after
giving due weight to the opinion of the Judge and
considering the entire evidence. Ordinarily, a jury’s
verdict on questions of fact would not easily be disregarded
by the High Court because the basic principle of a trial by
jury is that the jury are masters of fact. The verdict of
the jury would not be reversed by the High Court merely
because it disagreed with it. If the High Court, after
considering the entire evidence, came to the conclusion that
no reasonable body of men could have reached the conclusion
arrived at by the jury, then the High Court would be
entitled to disregard the verdict.
At the time that the reference was made under s. 307 by the
Additional Sessions Judge, the provisions of s. 307 were in
the following terms:
” 307. (1) If in any such case the Judge disagrees ,with the
verdict of the jurors, or of a majority of the jurors, on
all or any of the charges on which (any accused person) has
been tried, and is clearly of the opinion that it is
necessary for the ends of justice to submit the case (in
respect of such accused person) to the High Court, he shall
submit the case accordingly, recording the grounds of his
opinion, and, when the verdict is one of acquittal, stating
the offence which he considers to have been committed (and
in such
965
case, if the accused is further charged under the provisions
of section 310, shall proceed to try him on such charge as
if such verdict had been one of conviction).
(2) Whenever the Judge submits a case under this section,
he shall not record judgment of acquittal or of conviction
on any of the charges on which (such accused) has been
tried, but he may either remand (such accused) to custody or
admit him to bail.
(3)In dealing with the case so submitted the High Court may
exercise any of the powers which it may exercise on an
appeal, and subject thereto it shall., after considering the
entire evidence and after giving due weight to the opinions
of the Sessions Judge and the jury, acquit or convict (such
accused) of any offence of which the jury could have
convicted him upon the charge framed and placed before it;
and, if it convicts him, may pass such sentence as might
have been passed by the Court of Sessions “.
In construing s. 307 we must consider first the words “if in
any such case” at the very commencement of the section.
These words refer to the case mentioned in s. 306(1). That
case is the case which is tried before the Court of Session
by a jury and therefore obviously the whole case and not a
part of it. When the jury have given their verdict in the
case, then the Judge has to consider whether he agrees with
it and, if he does, then he must give judgment accordingly.
If, however, he disagrees and is clearly of the opinion that
it was necessary for the ends of justice to submit the case
to the High Court he must submit the case accordingly. In
our opinion, the case to be submitted to the High Court is
the whole case against the accused and not a part of it.
This appears to us to be clearly the effect of the
provisions of ss. 306 and 307 when read together. Section
307 (2) specifically prohibits the Judge, when be considers
it necessary to submit the case by way of reference to the
High Court, from recording any judgment of acquittal or of
conviction on any of the charges on which the accused had
been tried. This prohibition is mandatory and a Judge, who
records a judgment of acquittal or of conviction on an of
the charges on which the accused had been
966
tried, contravenes the provisions of s. 307(2) and the
judgment so recorded is illegal. We cannot accept the
submission of the learned Counsel for the appellants that
the action of the Judge in recording a judgment is a mere
irregularity. Section 307(3) provides for the powers which
the High Court may exercise in dealing with the case so
submitted and it enjoins that although the High Court may
exercise any of the powers conferred on it, when hearing an
appeal, it should consider the entire evidence and after
giving due weight to the opinion of the Sessions Judge and
the jury, either convict or acquit the accused of any
offence for which he was tried, and if it convicted him of
an offence for which the jury should have convicted him,
pass such sentence as might have been passed by the Court of
Session. But before the High Court could exercise the
powers conferred on it under s. 307(3) it was necessary that
the reference under s. 307 should have been according to
law. This was, in our opinion, a condition precedent to the
exercise of such power by the High Court. The words “with
the case so submitted” make it quite clear that a reference
under s. 307(1) must be of the whole case against the
accused and not a part of it. In order that the High Court
may be in a position to properly exercise its powers under
s. 307(3), it was necessary for it to consider the entire
evidence in the case, which obviously it could not do if the
trial judge had already recorded a judgment. By recording a
judgment the trial Judge prevents the High Court from
properly exercising its powers under s. 307(3) as the
reference made thereafter is not of the entire case with
respect to the accused. Indeed, in the present case the
Judge having accepted the jury’s verdict and having recorded
a judgment of acquittal under s. 304/149, Indian Penal Code,
in the case of each accused, took it out of the hands of the
High Court to deal with the case of each accused with re-
ference to the other charges framed against him.
The effect of the amendments to s. 307 of the Code made in
1923 and 1955 lend further support to the view that it is
the whole case which must be referred and not a part of it,
The provisions of s. 307(1) before
967
the amendment of 1923 were so expressed as to make it
possible to say that it was necessary for the trial Judge to
refer the whole case concerning every accused on all the
charges framed against them irrespective of the fact that
the Judge was in agreement with the jury with respect to a
particular accused on all the charges framed against him.
The amendment of 1923 introduced the words ” any accused
person ” in place of the words ” the accused ” and ” in
respect of such accused person ” in a. 307(1). The amend-
ment, accordingly, enabled the Judge to accept the verdict
of the jury on all the charges framed against any accused
person and to record a judgment with reference to him while
referring the case of another accused to the High Court
where he disagreed with the verdict on any of the charges
framed against him. The amendment was made to remove the
necessity of referring the whole case, including the case of
an accused concerning whom the Judge was in agreement with
the verdict on all the charges framed against him. The
amendment would have been unnecessary if s. 307(1)
contemplated a reference of only a part of the case and not
the whole of it.
The amendment of 1955 completely recast s. 282 of the Code.
This amendment provided for the continuance of the trial
with the reduced number of jurors, in the circumstances
mentioned in the section, instead of the trial re-commencing
with a newly selected jury. Consequently, in s. 307 sub-
section (1)A was introduced which directed that where the
jurors were equally divided on all or any of the charges on
which any accused person had been tried, the Judge must
submit the case in respect of such accused to the High Court
recording his opinion on such charge or charges and the
grounds of his opinion. This direction, in our opinion,
makes it clear that the whole case had to be submitted to
the High Court. In our opinion, the amendments of 1923 and
1955 to s. 307 clearly indicate that Parliament itself
thought that it was the whole case and not a part of it
which was to be submitted to the High Court. Indeed, as
already stated, s. 307, even before its amend-
123
968
ment in 1955, when properly construed, leads to no other
reasonable conclusion.
It is now necessary to consider the cases decided by some of
the High Courts in India in this connection. The Patna High
Court in Hazari Lal’-s case (1) expressed the opinion that
having regard to the provisions of s. 307 a reference made
thereunder must be of the whole case against the accused and
not a part of it. If only a part of it is referred then the
reference made under s. 307 is incompetent. That High Court
reaffirmed the view taken in Hazari Lal’s case in the case
of Ramjanam Tewari(2). This was the view also taken by the
three Judges of the Calcutta High Court in the case of The
Emperor v. Bishnu Chandra Das(3), two of whom, however, in
rejecting the reference directed that the accused be
acquitted. The third Judge, Mr. Justice McNair, however,
confined himself to the observation that the Sessions Judge
had disabled himself from making a valid reference under s.
307 of the Code by accepting the verdict of the jury against
the accused on some of the charges. In our opinion, the
view taken by the Patna High Court was correct and in
accordance with the provisions of s. 307.
It was, however, submitted on behalf of the appellants that
in view of certain decisions of the Calcutta High Court and
the Allahabad High Court, when a reference had in fact been
made, it was open to the High Court to deal with it and
record a judgment. Reference was made to the case of King
Emperor v. Ananda Charan Ray (4). It is true that in this
case the learned Judges did consider the evidence in order
to ascertain whether the verdict of the jury was one which a
body of reasonable men could have arrived at. The learned
Judges, however, observed before considering the evidence in
the case, ” If the learned Officiating Additional Sessions
Judge considered that the interests of justice required a
reference to this Court, I should say that he would have
been better advised if he had referred the whole case
leaving it to this Court to consider the whole of the
evidence that
(1) (1932) I.L.R. Pat. 395.
(2) (1935) I.L.R. Pat. 717.
(3) (1933) 37 C. W. N. 1180.
(4) (1916) 21 C.W.N. 435, 437.
969
was placed before the jury. As it is, this Court is
precluded from considering whether the accused mis-
appropriated or had a hand in misappropriating any portion
of these sums of Rs. 200 and Rs. 458.” After referring to
the evidence, the learned Judges expressed the following
opinion: ” The real truth of the matter is that, if the
learned Judge considered that this was a case that ought to
be referred under s. 307, Cr. P. C., he never ought to have
sent up the case in this way by tying the hands of the Crown
or of the Court or even the defence by agreeing with the
verdict of the jury on the charges framed under sees. 406
and 477A of the Indian penal Code. As it is, he had
precluded the Court from questioning or going behind that
verdict and thus from considering the large body of evidence
that was placed before the jury. In the result, we find it
impossible in this case to accept the reference made by the
learned Officiating Additional Sessions Judge and we think,
having regard to the fact that the accused has been
acquitted on the charges framed under secs. 406 and 477A,
Indian Penal Code, we ought to accept the verdict of not
guilty on the charges framed under sec. 467 read with see.
471 and sec. 474 1. P. C., and direct that the accused be
acquitted.” This decision, in substance, takes the same view
as that expressed by the Patna High Court in the cases of
Hazari Lal and Ramjanam Tewari. In the case of Emperor v.
Nawal Behari(1), the learned Judges of the Allahabad High
Court held that when a Sessions Judge refers a case under s.
307 of the Code, he must refer the whole case against the
particular accused and not merely those charges on which
there happens to be a finding by the jury with which lie
disagrees. This view is substantially in keeping with the
view taken by the Patna High Court in the cases mentioned
above. It is true that the learned Judges them proceeded to
consider the evidence and set aside the conviction and
sentence under s. 193 passed by the Sessions Judge and
substituted in its place a conviction by the High Court
under s. 193. In our opinion, if the reference under s. 307
of the Code had to be of
(I)(1930) I.L.R. All. 881.
970
the whole case against the accused and not merely those
charges on which the trial Judge disagreed with the jury,
then the reference was incompetent and the High Court could
not proceed to exercise any of the powers conferred upon it
under s. 307(3), because the very foundation for the
exercise of that power was lacking, the reference being
incompetent. In the case of Emperor v. Jagmohan(1), while
the learned Judges held that the reference to the High Court
only of a part of the case was irregular, the High Court
could consider not Only the part of the case referred to it,
but the whole case. We are unable to accept this view.
Whatever support this decision may give to the submission
made by the learned Counsel for the appellant, we are
clearly of the opinion that the decision of the Allahabad
High Court in this case was erroneous in law. In Emperor v.
Muktar(2) thelearned Judges were of the opinion that the
reference was not in order when the trial Judge recorded a
finding on some charges in respect of the very accused whose
cases so far as other charges were concerned were referred,
but the defect was not necessarily fatal to the reference
and the High Court might entertain the same. This view
cannot be sustained, having regard to the provisions of s.
307.
In our opinion, a reference made in the circumstances of the
present case, was incompetent and the High Court should have
rejected it and not proceeded to record any judgment of
acquittal or conviction.
We, accordingly, allow the appeal, set aside the judgment of
the High Court and hold that the reference under s. 307 to
the High Court was incompetent.
A question has arisen as to what consequential order should
be passed by this Court as the result of our conclusion that
the reference under s. 307 to the High Court was incompetent
and the appeal succeeding. The High Court should have
rejected the reference as incompetent and remitted the case
to the Additional Sessions Judge for disposal according to
law.
(1) I.L.R. (1947) All. 240.
(2) (1943) 48 C.W.N. 547.
971
We emphasise the absolute need for making a competent
reference under s. 307 of the Code and the case being
remitted to the Court making the reference as soon as
possible if an incompetent reference is made in order to
avoid legal complications, unnecessary waste of time and
money and harassment to the accused. In this case the
letter of reference is dated June 7, 1954, that is, more
than three years ago. The occurrence took place on October
21, 1953. After such lapse of time we will not order that
the case be returned to the Court of the Additional Sessions
Judge of Alipur for disposal according to law, particularly
as we are informed that the Judge who made the reference to
the High Court has retired from service and it is doubtful
whether, in law, his successor can at all deal with the
case. In the circumstances of this particular case,
therefore, the only order which we pass is that the
reference being incompetent is rejected.
Appeal allowed.