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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

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      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

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                                  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

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      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

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      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

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      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,

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      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

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      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.