Case ID: 542

Judgment:
ON: 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. section C. Isaacs	 and section N. Mukherjee	 for the appellants. A. C. Mitra	 D. N. Mukherjee and P. K. Bose	 for the respondent. 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 section 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 sections 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 section 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 section 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 sections 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 section 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 sections 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 section 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 section 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 section 147 of the Indian Penal 963 Code and under section 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 section 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 section 307 by the Additional Sessions Judge	 the provisions of section 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 section 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 section 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 sections 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 section 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 section 307(3) it was necessary that the reference under section 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 section 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 section 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 section 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 section 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 section 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 section 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 section 307(1) contemplated a reference of only a part of the case and not the whole of it. The amendment of 1955 completely recast section 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 section 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 section 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	 section 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 section 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 section 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 vs 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 section 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 section 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 vs 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) (2) (3) (4) 	 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 section 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 vs Nawal Behari(1)	 the learned Judges of the Allahabad High Court held that when a Sessions Judge refers a case under section 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 section 193 passed by the Sessions Judge and substituted in its place a conviction by the High Court under section 193. In our opinion	 if the reference under section 307 of the Code had to be of (I)(1930) I.L.R. All. 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 section 307(3)	 because the very foundation for the exercise of that power was lacking	 the reference being incompetent. In the case of Emperor vs 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 vs 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 section 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 section 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 section 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) 971 We emphasise the absolute need for making a competent reference under section 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.

Summary:
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 section 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 section 307(3). Hazari Lal 's case	 (1932) 1. L. R.//Pat. 395 and Ramjanam Tewari	 	 approved. Emperor vs jagmohan	 1. L. R. (1947) Allahabad 240	 and Emperor vs Muktar	 	 disapproved. The Emperor vs Bishnu Chandra Das	 	 King Emperor vs Ananda Charan Ray	 	 and Emperor vs Nawal Behari	 	 considered. Consequently	 in a case where eight persons were put up for trial in the Court of Session charged under sections I47 and 304/I49 Of the Indian Penal Code and four of them were further charged under section 201 of the Indian Penal Code and the jury returned a unanimous verdict of not guilty under section 304/I49 and guilty under sections 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.