SASHI MOHAN DEBNATH AND OTHERS versus THE STATE OF WEST BENGAL

1947

Kirpal Kaur v. Bachan Sinch

Sarkar J.

962

SUPREME COURT REPORTS

[1958]

date of Bhau Nath Singh's death, or the date of the widows' taking possession, which seems to have been at or shortly after his death." As there is no evidence of any arrangement with the respondents under which Harnam Kaur can be said to have taken possession of the lands, her possession must be taken to have been adverse to the collaterals. Admittedly such possession commenced in 1920 on the death of Ram Ditta and has continued ever since. So at the date of the mortgage and gift, Harnam Kaur had acquired a title to the lands by adverse posses sion. The respondents' claim must fail.

We, therefore, allow the appeal with costs through

out.

Appeal allowed.

1957

November, 19 ·

SASH! MOHAN DEBNATH AND OTHERS v. THE STATE OF WEST BENGAL

(BHAGWATI, B. P. SINHA, JAFER IMAM, J. L. KAPUR

and GAJENDRAGADKAR, JJ.)

Sessions Trial-Reference-Judge agreeing with jury's verdict of non-guilty on some of the charges but in dis agreement with the verdict of guilty in respect of others If must refer the whole case against the accused-Record· ing 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.

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 not guilty in respect of others he cannot record his judgment of acquittal in respect of the latter charges in agreement with the jury In contravention of

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the mandatory provision of s, 307 (2) of the Code. Such reeording must have the effect of preventing the High Court from considering the entire evidence against the Deb""14 and Others accused and exercising its jurisdiction under s. 307 (3).

J9S7 Sa.rhl Mohan

v.

Hazari Lal's case, (1932) I.L.R. Pat. 395 and Ramjanam ~ State o[ Wen IJelwill

Tewari, (1935) I.L.R. Pat. 717, approved.

EmpeTOT v. Jagmohan, I.L.R. (1917) 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 ~ourt of Session charged under ss. 14'1 .and 304/149 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 guil,ty under s. 304/149 and guilty under ss. 147 and 201 and the judgment of .Judge accepting the. former. recorded ,a .acquittal in the case of each accused but disagreeing #1th the latter referred the matter to the High Court, th& ret.1- -ence was incompetent and the High Court was iii enor ill acting upon it and its judgment must be set aside.

Held, further, that although the proper order in Suc;h a ,

-case should be to remit the case to the trial ci>urt for dis posal according to law, in view of the· long lapse of time and peculiar circumstances of this case the reference must be rejected.

JURISDICTION: Criminal

CRIMINAL APPELLATE

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 Prqce. dure Code made by the Additional Ses.sions Judge, 24 Parganas at. Alipore on the June 7, 1954, in Ses sions Trial No. 2 of May, 1954.

S. C. Isaacs, and S. N. Mukherjee, for the appel·

1an,ts.

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 sub:- the stantial question for consi eration is w et er d reference made to the Calcutta High Court by the Ad·

h h

. . . ,.

964

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'

[1958]

1957 sashi Mohan

ditional Sessions Judge of Alipur under s .. 307 of the Code of Criminal Procedure (hereinafter referred Debnath amJ Othersto as the Code) was competent and, if not, whether the High Court acted with jurisdiction in convicting Th ; · ., w:s1 ':~ or acquitting any of the accused who were tried by the Additional Sess.ions Judge and a jury.

Imam J.

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 9, 304/149 of the Indian Penal Code, which the learned Judge ac cepted. He, accordingly, acquitted all the accused charged with this offence. '!'he 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 refer ence 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 M.ohan Pebnath, Rajendra . Debnath, Sudhanshu Kumar Debnath, Dinesh Chandra Debnath and Bonomali Das under s. 147 of the Indian Penal Code and sentenced each of tp.em 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 imprison ment 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 res pect to tbe accused Manindra Debnath and Gouranga

'

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Debnath under s. 147 of the Indian Penal Code and un,der s. 201 against Manindra Debnath and. Rohiili Kumar Debnath and acquitted them.

1957 Saahi Mohan DebnothandOthers

Imam 1•

The present appeal is by the accused Sashi Mohan . Tiie s;-.e of Debnath, Rajendra Debnath, Sudhanshu Kumar Deb- wur Bengal nath and Bonomali Das. When the appeal came· on for hearing on September 12, 1956, it was found neces- sary by this Court to have the appeal heard in the pre- sence 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 iri 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 0f these three accused have entered appearances in this Court.

·

It is unnecessary to refer either to. the facts con cerning the occurrence or the case of the prosecution and the defence, a8 the only question for decision be fore us is a question of law.. Indeed, no submissions were made either on behalf of the' appellimts 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 inter ference 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

966

SUPREME COURT REPORTS

[1958]

1957

certain offences which were triable with the aid of sashl Mohan assessors and other offences which were triable by a Debnath and Otlrersjury at the same trial, in which case the jlirors !lCted Th sv. of as assessors for the offences which were triable with w:st ':~~1 the aid of assessors. Although a trial by a jury was provided for by the Code, it did not compel the judge Imam J. 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 judgement. 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 re cording 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 conclu sion 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 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 according-

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967

ly, recording the grounds of his opinion, and, when the verdict is one of acquittal, stati,ng the offence sillld Mohan which he considers to have been committed (and.inDebiiathairdOthers such case, if the accused is further charged under the provisions of section 310, shall proceed to try•him on ~,,f~~a{ such charge as if such verdict had been one of con viction).

Imam J.

1957

v.

(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 wl;tich 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 ani:l the jury, acquit or convict (such accused) of any off ence of which the jury could have convicted hini 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".

the In construing s. 307 we must consider first words "if in a:i;iy such case" at the very commence ment of the section. These words refer to the case mentioned ins. 306(1). That case is the case which tried before the Court of Session by a jury and is 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 juc!gment 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 Ire must submit the case accordingly. In our opinion, the case to be submitted to the High Court is the whQle 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 he considers it necessary to submit the case by way of referen'Ce to

968

SUPREME COURT REPORTS

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1957

the High Court, from recording any judgment of ac- Sashl Mohan quittal or of conviction on any of the charges on Eebnath and 011ierswhich the accused had been tried. This prohibition The s~;,, " is mandatory and a Judge, who records a judgment of west 11e',,/:,i acquittal or of conviction on any of the charges on which the accused had been tried, contravenes the Imam J. 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 irregu larity. 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 en the tire evidence and after . giving due weight to 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 sub mitted" 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 judg ment. By recording a judgment the trial Judge pre vents the High Court from properly exercising its powers under s. 307(3) as the refei;-ence made there after is not of the entire case with respect to the accused. Indeed in the present case the Judge hlwing the jury's verdict and having recorded a accepted judgment of acquittal under s~ 304/149, Indian Penal

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969

Code, in the case of each accused, took it out of the hands of the High Court· to deal with the case of each · sashlMohan accused with reference to the other charges framed Debnath and Other against him.

The St~te of The effect of the amendments to s. 307 of the Code west Bengal Imam 1•

1957

made in 1923 and 1955 lend further support to the view that it is the whole case whic~ must be referred and not a part of it. The provisions of s. 307 ( 1) before 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 accus- ed on all the charges framed against them irrespec- tive 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 s. 307(1). The amendment, accordingly, enabled the Judge to accept the verdict of the jury on all the charges framed against any ac- cused 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 refer,;. ring 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 con tinJlance 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, ins. 307 sub-section ( 1 )A was introducea 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

123

LISup. Court-6

970

SUPREME COURT REPORTS

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1957

to be submitted

must submit the case in respect of such accused to the &ulU Mohan High Court recording his opinion on such charge or D•bnath and Othmcharges and the grounds of his opinion. This direc The ;:ai tion, in our opinion, makes it clear that the whole case f wm s.:O,"ai had In our opinion, the amendments of 1923 and 1955 to s. 307 clearly indicate that Parliament itself thought that it was the whole caseiand not a part of it which was to be submitted to the High Court. Indeed, as already stated, s. 307, even before its amendment in 1955, when properly construed, leads to no other reasonable conclusion.

to the High Court.

Imam J.

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 ) expres sed 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 reaffir med the view taken in Hazari Lai'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 third Judge, Mr. Justice McNair, however, confined himself to the observation .that the Sessions Judge had disabl ed himself from making a valid reference under s. 307 of jury the Code by accepting the verdict of the 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 appel lants 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.

that the accused be acquitted. The

(I)• (1932) l.L.R. Pat. 395.

(2) (1935) I.L.R. Pat. 717.

(3) (1933) 37 C.W.N. 1,180.

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971

Imam J.

""'h sv. ,, e

1957 sashi Mohan

). It is true that in this case Ananda Charan Ray ( 1 the learned Judges did consider the evidence in order to ascertain whether the verdict of the jury was oneDebnath and Others which a body of reasonable men could have arrived ·'" late o, at. The learned Judges, however, observed before West Bengal 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 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 express- ed the following.opinion: "The real truth of the mat- ter 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 secs. 406 and 477A of the Indian Penal Code. As it is, he had pre- cluded 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 4 77 A, Indian Penal Code, we ought to accept the verdict of not guilty on the charges framed under sec. 467 read with sec. 471 and sec. 474 I.P.C., and direct that the accused be acquit- ted." This decision, in substance, takes the same view as the that expressed by the Patna High Court in cases of Hazari Lal and Ramjanam Tewari. In the ca<;e of Emperor v. Nawai Behari ( 2 learned ), the Judges of the Allahabad High Court held that when a

(I) (1916) 21 C.W.N. 43S, 437.

(2) (1930) I.L.R. AU. 881.

972

SUPREME COURT REPORTS

[1956]!

1957

Imam 1•

Sessions Judge refers a case under s. 307 of the Code, Sashl Mohan he must refer the whole case against the particular D•/math and Othersaccused and not merely those charges on which there· The s;~te 01 happens to be a finding by the jury with which he· West Deneal 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 then 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 con viction by the High Court under s. 193. In our opinion, if the reference under s. 307 of the Code had to be of 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 ( '),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 deci sion of the Allahabad High Court in this case was erroneous in law. In Emperor v. Mu.ktar ( 2 ) the learn· ed Judges were of the opinion that the reference was not in order when the trial Judge recorded a find ing on some charges in respect of the very accus.ed 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 re gard to the provisions of s. 307.

In ·our opinion, a reference made in the circum· stances of the present case, was incompetent and the High Court should have rejected it and not proceeded

(I) I.LR. (1947) All. 240.

(Z) (1943) 48 C.W.K 545

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to record any judgment of acquittal or conviction.

We, accordingly, allow the appeal, set aside the

1957 Sashi Mohan

.

h

h

A

t .

the case to

if .. vt.t Th e .,, a e o West Bengal Imam J.

judgment of the High Court and hold that the refer-Debnath and Other -ence under s. 307 to the High Court was incompetent. t' 1 ques ion as arisen as to w at consequen 1a ·order should be passed by this Court as the result of -0ur conclusion that the reference under s. 307 to the High Court was incompetent and the appeal succeed- ing. The High Court should have rejected the refer- .ence as incompetent and remitted the Additional Sessions Judge for disposal according to law. We emphasise the absolute need for making a <:ompetent reference under s. 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 ac-, In this case the letter of reference is dated -cused. .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 re- turned to the Court of the Additional Sessions Judge 10f Alipur for disposal according to law, particularly as we are informed that the Judge who made the re- ference 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 parti- icular case, therefore, the only order which we pass is :that the reference being incompetent is rejected.

Appeal allowed.

THE STATE OF UTTAR PRADESH v. :M/S. SWADESHI COTTON MILLS CO., LTD., AND ANOTHER (and connected appeal) (BHAGWATI, JAFER IMAM and GAJENDRAGADKAR JJ.) Industrial Dispute-Awards made beyond specified time-Validity-Provision for· ~nlargement of time and

1957

November, 20.