- (1.) This is a reference under Section 307, Code of Criminal Procedure, made by an Assistant Sessions Judge of Howrah in a case in which one Ram Chandra Ghosal was tried before him on one charge under Section 307, Indian Penal Code, and nine charges under Section 324, Indian Penal Code. The jury returned a unanimous verdict of not guilty in respect of the charge under Section 307, Indian Penal Code, but in respect of seven of the nine charges under Section 324, Indian Penal Code, by a majority of 3 to 2 they returned a verdict of guilty and in respect of the other two charges under Section 324, Indian Penal Code, they returned a verdict of not guilty. The learned Judge accepted the unanimous verdict of the jury in respect of the charge under Section 307, Indian Penal Code, and also the majority verdict of not guilty in respect of two of the nine charges under Section 324 and actually recorded an order of acquittal in respect of those charges. But disagreeing with the majority verdict of the jury in respect of seven charges under Section 324, Indian Penal Code, he has referred this case.
(2.) At the very outset Mr. Sen on behalf of the State raised a preliminary point, namely, that the learned Judge was not justified in recording an order of acquittal in respect of the charge under Section 307, Indian Penal Code, and in respect on two of the nine charges under Section 324, Indian Penal Code, in which he agreed with the verdict of the Jury, but what he should have done was to refer the whole case. It is undoubtedly true that Section 307(2), Code of Criminal Procedure, requires the learned Judge whenever he submits a case under this section not to record judgment of acquittal or conviction on any of the charges on which the accused has been tried, the obvious idea behind this being that whenever a reference has to be made under Section 307, Code of Criminal Procedure, the whole case has to be referred so that the High Court may deal with it as a whole untrammeled by any final order on any part of the case so as to exclude that part from the scope of its examination. The learned Judge, therefore, was undoubtedly wrong in what he did. But the question we have to ask ourselves is whether the whole reference is invalid on that ground. No case has been cited before us either of this Court or of any other High Court in which it has been held that in such a case the whole reference is invalid. On the other hand there are cases in which it has been held that although the reference is imperfect in a case like this and although it may be a ground for rejection of the reference, the reference has been treated as valid and final order on the case passed. In Emperor v. Bishnn Chandra Das,1933 37 CalWN 1180 it was held that the Judge had no power to record judgment in respect of certain of the charges in accordance with the jury's verdict which he accepted and to refer the case in respect of the certain other charges with the verdict on which he disagreed. But it was not held either expressly or by implication that the reference was incompetent. One of the three Judges, McNair, J., however, observed that the learned Judge had disabled himself from making a valid reference under Section 307 of the Code of Criminal Procedure by accepting the verdict of the Jury against the accused on some of the charges. In the leading judgment delivered by Ghosh, J., the reference is described at one place as imperfect and at another as illegal, but nowhere as quite invalid. Ultimately, on a partial examination of the evidence, the accused was acquitted, one of the grounds of acquittal being the character of the reference. In King-Emperor v. Annada Charan Ray,1916 21 CalWN 435. this Court accepted such a limited form of reference but at the same time said that by this limited form of reference the High Court was precluded from considering the entire evidence on the record and on such reference all that the High Court had to decide was whether the verdict of the jury on the charges as to which there was disagreement between the judge and the jury was a reasonable verdict which a body of reasonable men could arrive at, having regard to the evidence bearing on these charges. Then on a consideration of the evidence regarding the charges on which the case was referred they ordered an acquittal of the accused on the strength of the verdict of the jury and rejected the reference. This case was referred to in the Patna case, Emperor v. Hazari Lal,1932 33 CrLJ 505 in which it was held that if the High Court took up the case it would be constrained by the verdict on one part of the transaction which was accepted by the Judge, so that on that ground alone the reference was rejected. In this case,-however, the High Court did not record any order of acceptance of the verdict of the jury on the first charge on which the case was referred and of an acquittal on that charge. These three cases are typical rather than exhaustive. None of them expressly lays down the proposition that the reference is altogether invalid, though Mc Nair, J. in the first went as far as saying that the Judge disabled himself from making a valid reference. The first two again deal with the case within the limits of the reference, the second speaking of the reference as a limited one. In the first, even McNair, J., while making the observation referred to, does not go to the length of saying that there being no valid reference before the High Court, the case either as a whole or in part is not validly before the Court, so as to entitle it to accept or reject the verdict of the Jury and to pass final orders on the basis of such acceptance or rejection. In the third, the frailty of the reference by itself was held to be a sufficient ground for its rejection and the High Court refused to go in to the merits for the simple reason that it could not effectively and properly deal with the case, handicapped as it was by the limited character of the reference. The evident result in this case of the High Court's refusal to deal with the merits was that there was no final order passed on the first charge under Section 302; Indian Penal Code, on which the jury had found the accused not guilty and the trying Judge was of opinion that this verdict was perverse and should be set aside and the accused convicted.
(3.) The question, therefore, whether such a reference is invalid has not really been finally decided in any of these cases and as already stated, no case could be placed before us exactly to the point. Section 307, Code of Criminal Procedure, has, therefore, to be examined afresh in a search for a correct solution. The Privy Council in Ram Anugrah Singh v. King Emperor, 1946 73 IndApp 174 examined at length the different provisions of the Code, including Section 307 in its attempt to find out the true scope of a jury trial and that of an assessor trial. What it says of Section 307 and of the duty of the High Court in this connection is illuminating and well worth reproduction: Under Section 307(1) two conditions are required to justify a reference. The first that the Judge must disagree with the verdict of the jury, calls for no comment, since it is obviously the foundation for any reference. The second, that the Judges must be clearly of opinion that it is necessary for the ends of justice to submit the case is important and in their Lordships' opinion provides a key to the interpretation of the section. The legislature no doubt realised that the introduction of trial by jury in the mofusil was experimental and might lead to miscarriage of justice through jurors, in their ignorance and inexperience returning erroneous verdicts. Their Lordships think that the section was intended to guard against this danger and not to enable the Sessions Judge and the High Court to deprive jurors, acting properly within their powers, of the right to determine the facts conferred on them by the Code. If the jury have reached a conclusion on the evidence which a reasonable body of men might reach, it is not necessary for the ends of justice that the Sessions Judge should refer the case to the High Court, merely because he himself would reach a different conclusion on the facts, since he is not the tribunal to determine the facts. He must go further than that and be of opinion that the verdict is one which no reasonable body of men could have reached on the evidence. The powers of the High Court in dealing with the reference are contained in Sub-section (3). It may exercise any of the powers which it might exercise on an appeal and this includes the power to call fresh evidence conferred by Section 428. The court must consider the whole case and give due weight to the opinions of the Sessions Judge and jury and then acquit or convict the accused. In their Lordships' view the paramount consideration in the High Court must be whether the ends of justice requires that the verdict should be set aside.;