JUDGMENT
Wort, J.
1. This is a Reference by the Assistant Sessions Judge of Monghyr under Section 307 of the Code of Criminal Procedure.
2. The nature of the offence was dacoity although perhaps not of the usually serious character. The case was tried by a Jury and the Jury returned an unanimous verdict to the effect that they would give the accused the benefit of doubt.
3. It appears that the learned Assistant Sessions Judge thereupon questioned the Jury and his question was.–“On what point do you feel a doubt.” Now it was pointed out by this Court of which I was a member in the case of Ram jag Ahir v. King-Emperor 109 Ind. Cas. 114 : 7 Pat. 55 : A.I.R. 1928 Pat. 3 : 29 Cr.L.J. 466 : 9 P.L.T. 567 : I.L.R. Pat. 102 that the procedure had HO warrant in law. I will go further and say that it was wholly unconstitutional. It is quite true that there was a question which the learned Assistant Sessions Judge might have put to the Jury in the circumstances of this kind and having regard to the statement that question would be–Do you mean a verdict of not guilty. Another way in which the learned Assistant Sessions Judge could have put the matter to the Jury would by directing them to return a verdict of not guilty by pointing out to them that a statement of this kind (that they would give the benefit of doubt to the accused) means a verdict of not guilty. Now,” certainly the method which the learned Assistant Sessions Judge did actually adopt was wholly illegal. It seems to me that the explanation of the expression of doubt which the Jury gave on being asked this unwarranted question, is the real basis of this reference under Section 207 of the Criminal Procedure Code. That is to say, whatever view the learned Assistant Sessions Judge may have taken of the case, he sets out as I understand from his letter of reference to explain that doubt which the Jury had in the matter, was entirely unwarranted. Apart from that matter the reference shows that upon the evidence the Assistant Sessions Judge’s view of the case was different from that which the Jury themselves had taken Now, there are a number of decisions as regards the proper construction of Section 307 of the Code of Criminal Procedure and they are somewhat conflicting: one sat of decisions holding the view that undoubtedly the verdict of the Jury must be perverse in order to warrant a reference under Section 307 of the Code; there are cases on the other hand, which do not go to that extent but go almost to hold the view that if the learned Judge trying the case with the assistance of a Jury comes to a very firm conclusion that the evidence does warrant. a conviction, then he is entitled to refer it under the aforesaid section. I am broadly stating the effect of the decisions and do not purport to lay down the exact effect of them in the statement which I have made. But whichever view one takes of Section 307, it is quite clear that the fact that the Assistant Sessions Judge might and does take a different view of the evidence from that which the Jury took is no ground for a reference under Section 307 of the Code of Criminal Procedure.
4. It seems to me that it is quite unnecessary for me in these circumstances to go into the evidence of the case, and all I say is that the Reference is not a competent one and must be discharged.