NAGEN DAS ALIAS BALAI DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) A preliminary question that has arisen in this matter for our decision is as to whether a further reference to a larger Bench is competent after the third Judge in a reference under Section 392 Cr. P.C. (new) expressed its view not agreeing with either of the views expressed by the two Judges of the Division Bench in a Criminal Appeal? The course of proceeding. The learned Trial Court convicted the Appellant under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 5.000/ - in default to undergo rigorous imprisonment for further period of two years. On appeal by the appellant against the aforesaid conviction and sentence, the Division Bench of this Court heard the same. The learned Judges of the Division Bench differed in their opinion. One view was for acquittal of the accused on setting aside the impugned judgment. The other view was in favour of dismissal of the appeal upholding the conviction and sentence imposed by the learned trial Court. Now to resolve this difference of opinion among the Judges constituting the Division Bench, the matter was referred to the third Judge in accordance with the provision of Section 392 Cr. P.C. (new). The third Judge did not agree with either of the views expressed by the Judges constituting the Division Bench. The third Judge enunciated a divergent opinion. According to the third Judge the appellant could not be convicted and sentenced under Section 302 IPC, nor could he be completely acquitted. The accused appellant was ordered to be convicted under Section 304 Part II read with Section 326 of the IPC and he was sentenced to suffer rigorous imprisonment for 7 years and a fine of Rs. 5,000/- and in default to undergo RI. for a further period of 2 years. We have deliberately refrained from making any comment as to the legality and correctness of the conviction under Section 304 part II read with Section 326 of the IPC as we are going to hold that the further reference to the larger Bench is incompetent.

(2.) After the third Judge expressed her aforesaid opinion, matter was laid before the Division Bench. The Division Bench by its order dated 16-7-1996 requested the HonTble the Chief Justice to constitute a larger Bench to which this matter may be referred- for Suitable orders in this behalf. Said order dated 16-7-1996 reads as under: .. Before The HonTble Mr. Justice V.D. Gyani The Honble Mr. Justice S.L. Saraf 16-7-1996 None appears for either side. Considering the judgment delivered by third Judge on difference of opinion between two Judges of the Division Bench, a serious question of presidential jurisprudence has arisen which to our mind can only be resolved by a larger Bench. Let the matter placed before the Honble Chief Justice for constituting an appropriate Bench and suitable orders in this behalf. Sd/ Sd/ Judge Judge This is how the Honble the Chief Justice Constituted this larger Bench to which the matter has been referred.

(3.) Now the question is whether this further reference to this larger Bench is competent and contemplated under Section 392 Cr. P.C. (new) after the third Judge expressed its final opinion irrespective of the fact as to whether such opinion of the third Judge agrees with either of the views expressed by the judges constituted the Divisional Bench? To resolve this question of law, we requested Mr. N.M. Lahiri, learned Advocate General Meghalaya being assisted by Mr. N. Choudhury and Mr. N. Dutta, learned Advocates to extend their valuable assistance to this Court. They readily agreed to do so and accordingly we have heard them apart from Mr. J. Singh, learned Public Prosecutor, Assam. The learned counsels rendered their valuable assistance to the Court.