RATAN RAI versus STATE OF BIHAR

J.-The appellants Nos. 2 . and 3, who are the surviving appellants after the deat)i of appellant No. 1 during the pendency of this appeal, were charged with having committed offences. under ss. 435 and 436 -0£ the Indian Penal Code and were tried by the Second Assistant Sessions Judge of Saran, Chapra, with the aid of a jury. The jury returned a majority verdict that both of them were guilty of the offences under those sections. The Assistant Sessions Judge disagreed with the said verdict and made a zeference to the High Court of Judicature at Patna under s. 307 of the Code of Criminal Procedure. The said reference was heard by a Division Bench of that High Court. The learned judges of the High Court overruled the contentions which were urged before them in regard to the charge to the jury being defective and further held that the reference was, in the circumstances, not competent. They, however, without anything more accepted the majority verdict and held the appellants guilty of the offences under ss. 435 and 436 of the Indian Penal Code and sentenced them to six months' rigorous imprisonment each. The appeltants obtained from this Court special leave to appeal under Art. 136 of the Constitution and hence this appeal.

pp. 274–275

The facts leading up to this appeal may be shortly stated as follows :-There was a dispute between the parties as to title to plot No. llOO of village Rampur, Tel}grahi. One Kailash Rai claimed to be the owner of that plot and also claimed to be in possession of a Palani standing in a portion of that plot as also of a Punjaul, i.e., a haystack in its vicinity. There had been proceedings under s. 144 of the Code of Criminal Procedure in regard to this area leading up to a title suit being T.S. No. 58/8 of 1948/50 filed by Kailash Rai against the appellants in regard to the same. A decree had been passed on December 16, 1950, in that title suit dismissing the claim of Kailash Rai. An appeal had been filed by Kailash Rai against that decree and that appeal was pending at the date of the occurrence. On March 4, 1951, Kailash Rai was sitting in the Palani and at about 3 to 4 p.m. a mob consisting of about 100 to 125 persons including the appellants all armed with lathis, bhallas and pharsas came to the Palani and began to demolish. the same. Kailash Rai remonstrated and the deceased ·appellant No. 1 ordered that the Palani should be set on fire. The appellant No. 2 thereupon set fire to the Palani with a match stick and the appellant No. ·3 set fire to the Punjaul. The first information report of this occurrence was lodged at Gopalganj Police Station at 8 p.m. the same night. The officer in charge of Gopalganj Police Station investigated the case and challaned the appellants charging them with having committed offences under ss. 435 and 436 of the Indian Penal Code.

pp. 275–276

The Committing Court found a prima facie case made out against the appellants and sent them up for trial by the Assistant Sessions Judge, Second Court, Chapra, who tried them by a jury. The jury returned a majoritv verdict of guilty against the appellants. The Assistant Sessions Judge, however, disagreed with that verdict and made a reference to the High Court stating in the letter of reference that on the evidence recorded before him the appellants had been in possession of the Palani and the Punjaul but were dispossessed of the same some time prior to the passing of the decree in the title suit on December 16, 1950, and were therefore justified in taking steps for recovery of possession thereof from Kailash Rai on March 4, 1951, and if in that process the appellants set fire to the Palani and the Punjaul they were only destroying their own property and were not guilty of the offence of committing mischief by fire as alleged by the prosecution. The Assistant Sessions Judge tried to analyse the working of the minds of the jury in arriving at the verdict which they did and though he agreed with the alleged finding of fact reached by the jury in regard to the possession of the Palani and the Punjaul, disagreed with the law as allegedly applied by the jury and therefore disagreed with the majority verdict.

p. 276

When the reference was heard before the High Court, the counsel for the appellants only contended that the charge addressed by the Assistant Sessions Judge to the jury was defective and he did not invite the High Court, as he should have done, to consider the entire evidence and to acquit or convict the appellants of the offences of which the jury could have convicted them upon the charges framed and placed before it, after giving due weight to the opinions of the learned Sessions , Judge and the jury as required by s. 307(3) of the. Code of Criminal Procedure. The High Court, therefore, only considered the obiections which had been urged by the learned counsel for the appellants . before it in regard to the charge being defective and overruled them, accepted the majority venlict, convicted the appellants and sentenced them as abm e.

pp. 276–277

We are of opinion that in so doing the High Court was clearly in error and acted in violation of the provisions of s. 307(3) of the Code of Criminal Procedure. Section 307(3) provides:-

p. 277

"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 tlie jury, acquit or convict such accused of any offence of wiuch the jury could have convicted him upon th~ charge framed and placed before it; and, if it convics him, may pass such sentence as might have bern passed by the Court of Sessions."

p. 277

We had occasion to consider this prov!S!on in Akhlakali Hayatalli v. The State of Br>mbay ( where we approved of the following observations of their Lordships of the Privy Council in Ramanugrah Singh v. The Emperor ( ):

p. 277

. "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 upon an appeal, and this includes the power to call fresh evidence conferred by s. 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 require that the verdict of the jury should be set aside. In general, if the evidence is such that it can properly support a verdict either of guilty, or not guilty, according to the view taken of it by the trial Court, and if the jury take one view of• the evidence and the judge thinks that they should have taken the other, the view of the jury must prevail, since they are the judges of fact. In such a case a reference is not justified, and it is onlv by accepting their view that the High Court can give <lue weight to the opinion of the jury. If, however.

p. 277

the High Court considers that upon the evidence no reasonable body of men could have reached the conclusion arrived at by the jury, then the reference was justified and the ends of justice required that the verdict be disregarded."

p. 278

This was pronounced by us to be the correct method of approach in a reference under s. 307 of the Code of Criminal Procedure. It was incumbent on the High Court when the reference was heard by it to consider the entire evidence and come to its own conclusion whether the evidence was such that it could properly supJl9rt · the verdict of guilty against the appellants. If the · High Court came to the conclusion that the evidence was such that it was possible for the jury to take the view that it did even though the judge _ thought that they should have taken another view the reference would not have been justified and the High Court should have accepted the opinion of the jury. If the High Court was however of opinion upon the evidence that no reasonable body of men could have reached the_ conclusion arrived at by the jury the reference would have been quite justified and the ends of justice required that the verdict should be disregarded. The High Court, however, only considered the arguments in regard to the defect in the charge to the jury addressed before it by the learned counsel for the appellants and did not consider the entire evidence which was on the record before it. In not having done so, we are clearly of opinion that it violated the provisions of s. 307(3) of the Code of Criminal Procedure.

p. 278

We are accordingly of opinion that the judgment of the High Court accepting the majority verdict and convicting the appellants and sentencing them as above without considering the entire evidence was clearly wrong and the conviction of the appellants and the sentences passed upon them should be set aside.

p. 278

We. •were invited by learned counsel for the parties appearing before us to consider the entire evidence for ourselves and come to the conclusion which, according to the provisions of s. 307(3) of the Code of Criminal Procedure, the High Court should have done. We do not think that that is the proper procedure to adopt and we therefore · allow the appeal, and remand this matter to the High Court to act in accord.ance with the provisions of s. 307(3) of the Code of Criminal Procedure and deal with the same in accordance with law. The appellants will continue on the same bail as before.

pp. 278–279

Appeal allowed. THE STATE OF BIHAR RAM NARESH PANDEY (With Connected Appeal)

p. 279

and JJ.] Session-Whether

p. 279

stage- 'Tria/', of-Code 1898 (.let V 1898), 494.

p. 279

s .. of the Code of Criminal Procedure, 1898: "Any Public Prosecutor may; with the consent of the Court, cases tried jury before the return of the and in other cases before the judgment i~ pronounced, withdraw from the prosecution any person either generally or in respect of any one or more of the offences for which he tried ; and upon such withdrawal.-( a) if it made before a charge has been framed, the accused shall be discharged in respect of such offence or offences ; (h) if it made after a charge h1s been framed. or when under this Code no charge required, he shall acquitted in respect of such offence or offences."

p. 279

The prosecution of M. and others was bunched on the first information of the first respondent, and when the matter was pending before the Magistrate in the committal stage and before any evidence was actually taken, an application for the withdrawal of from the prosecution made the Public Prosecutor under 494 of the Code of Criminal Procedure on the ground that "on the evidence aYailable it would not be just and expedient to proceed with the prosecution of M.'' The Magistrate was of the opinion tha~ there no reason to withhold the consent that was applied for and accordingly he discharged the accused. This order was upheld by the Sessions Judge, but on 4-100

p. 279