SUBEDAR Vs. STATE

JUDGEMENT

(1.) The appellants were convicted by the Additional Sessions Judge under Section 304, I. P. C for causing the death of Bhajan Lal and under Section 323 for causing simple hurt to Mitthu. When we heard their appeal, we disagreed on the question whether they are guilty under Section 304, I.P.C. and referred the case to a third Judge for his opinion. We agreed on the question of the conviction under Section 323, I.P.C. and expressly recorded the finding that their convictions and sentences under Section 323 read with Section 34, I.P.C. were to be maintained. Thus not only was there no difference of opinion between us on the question whether they are guilty under Section 323, I.P.C. but also we expressly excluded it From the jurisdiction of the third Judge. There was only one record of the trial of the appellants for the two charges and it could not be split up into two records, one pertaining to the charge under Section 304. I. P. C and the other pertaining to the charge under Section 323, I.P.C. The whole record had to be Laid before the Hon'ble the Chief Justice. The third Judge, though he had the whole record before him, had to give his opinion only on the question referred to him and not on other questions which were not referred to him or which had been decided by us or on which we had not disagreed. It is provided in Section 429 of the Code of Criminal Procedure, under which we acted, that when the Judges ...are equally divided in opinion, the ease, with their opinion thereon, shall be Laid before another Judge of the same Court, and such Judge ...shall deliver his opinion, and the judgment or order shall follow such opinion. Under this provision what is required to be done in the first instance is laying the case before a third. Judge; the third Judge has then to deliver his opinion and the judgment of the Court of appeal has to follow such opinion. What is meant by the word 'case' has not been explained. If it means the record of the proceedings, there is no difficulty at all because, as explained above, the whole record must of necessity be Laid before the third Judge and from the laying of the whole record before him it cannot be inferred that he has jurisdiction to decide all the questions arising upon it. It is not mentioned in Section 429 on what matter the third Judge has to give his opinion, whether only on the matter on which the Judges are equally divided in opinion or on all matters arising upon the record.

(2.) The normal rule is that for every distinct offence there must be a separate charge and every such charge must be tried separately, vide Section 233. In certain circumstances mentioned in Sections 234 etc. trial of two or more persons or of a person for two or more offences or of two or more persons for two or more offences is permitted. When a trial is against one person in respect of one offence, no difficulty arises at all, because the word 'case' means the trial. But when a trial is of two or more persons for one offence, or when a trial is of one person for two or more offences, or when a trial is of two or more persons for two or more offences, the question arises what is meant by the word 'case'; does it mean a trial of one person regardless of the number of offences with which he is charged, or a trial of one person for each offence, or a trial for one offence of any number of persons, or the whole trial of two or more persons for two or more offences. What the word means when one person is tried for two or more offences has not been explained in any authority so far as I am aware; no authority on the point has been placed before us by Sri P, C. Chaturvedi or Sri D. P. Uniyal.All the authorities that have been cited before us lay down that when two or more persons are tried jointly for an offence, the word 'case' means the trial of each accused and not the whole trial of all the accused. The reasonableness of this interpretation cannot be doubted. It is only when the Judges of the court of appeal are equally divided that the case is required to be Laid before a third Judge; obviously if in respect of any accused they are in agreement, there should arise no occasion for his case being referred to the third Judge. The third Judge has to give his opinion, but in the absence of any words stating on what matter he has to give his opinion it is reasonable to say that he must give his opinion on the matter on which the Judges are equally divided; it is only that matter that requires an opinion. When the Judges are equally divided, there must be an opinion of a third Judge to convert the equal division into an unequal division so that the majority view can be given effect to. The third Judge has not been given any power of appeal over the two Judges; he has been empowered to give his opinion so that his opinion should go with the opinion of one Judge composing the Court of appeal to make two opinions as against one opinion of the other Judge. It follows that the third Judge has jurisdiction to give his opinion only on those matters on which there has been a difference of opinion.

(3.) I should make it clear at this stage that the division of the two Judges composing the Court of appeal must be in their opinion about the final order to be passed and not about the reasons for the final order, if the two Judges are agreed about the final order to be passed but for different reasons, Section 429 will not apply and the case will not be required to be Lald before a third Judge. They will pass the final order as agreed by them. When they disagree about the final order so that they cannot pass any final order, the case must go to a third Judge. When the case goes before the third Judge, he has full power to decide it in any manner that he likes and is not bound by the opinion expressed by either of the Judges. He is not bound even by their agreed opinion on an interlocutory question arising in the case. The final order to be passed in a case may depend upon answers to several questions; the Judges may agree as to the answers to some of the questions and disagree as to the answers to the other questions and may disagree about the final order to be passed in the case and the third Judge is not bound by the agreed opinion of the two Judges on the questions on which they have agreed, particularly if the final order that should be passed accord tog to his opinion would be inconsistent with the agreed opinion. He has full freedom in forming his opinion on the matter referred to him. In - 'Sarat Chandra v. Emperor' 88 Cal 202 (s) the two Judges of a Court of appeal agreed that a pertain document was a newspaper but one held the the order of forfeiture was legal and the other the it was illegal; when the case went before a third Judge, he decided that he had jurisdiction to hold that it was not a newspaper at all. His opinion about the final order was that the forfeiture must be set aside; if he agreed with the reason given by one Judge for maintaining the order of forfeiture and disagreed with the reason given by the other for quashing it and was bound by their agreed opinion that the document was a newspaper, he would have been obliged to give his opinion that the forfeiture must be maintained. But the case had gone to him for his opinion about the final order which means that he was not bound to give it in a particular manner; so it follows that if he could not give a free opinion about the final order without disregarding the agreed opinion of the two Judges, he had every jurisdiction to do so. In - 'Grande Venkata Ratnam v. Corporation of Calcutta', 1919 Cal 862 (AIR V 6) (B) it was observed by Woodroffe J., at p. 870 that the third Judge cannot differ from the two Judges on a point agreed upon by them "unless there were strong grounds". With great respect I think that the question is one of law and not of discretion or fact depending upon reasons. In this very case one of us was of the opinion that the appellants were guilty under Section 304 for causing the death of Bhajan Lal and 'the other was of opinion that he was guilty under Section 32S, I.P.C. only; our brother V. D. Bharava was, however, of the opinion that they committed no offence. He was certainly not required 1956 Ori. L. J. D.P. 66 to hold that they committed at least the offence of Section 325, I.P.C. Having held that the appellants had a right of private defence and that it could not be decided which of them caused the death of Bhajan Lal by exceeding it, he could not hold them guilty under Section 325, I.P.C. first because we were agreed that they were guilty at least under Section 325, I.P.C. The case was referred to him and not a particular question. Section 429 requires the case to be referred to a third Judge and not a particular question arising in the case and on which there has been a difference of "opinion. If a particular question on which the Judges have disagreed is referred to a third Judge, he may be able to answer it even though in his opinion it does not arise or is immaterial or does not conclude the case. But it is the case that is referred to him, i.e., he has to give his opinion about the final order to be passed in the appeal. I respectfully agree with Jagannactha Das, C.J. wrien he Laid down m the - 'State of Orissa v. Minaketan' 1953 Orissa 160 AIR V 40 (SB) (C) that the difference between the two Judges must be about the final order or about the operative part of the order to be passed and not about the reasons.