STATE OF MAHARASHTRA Vs. BASTAV VICTORY RODRIGUES

JUDGEMENT

(1.) THE question referred to the Full Bench is "whether it is open to a Court of Session trying a case with the aid of a jury, after recording the opinion of the jury, which is ex facie not ambiguous, to re-charge the jury, because the judge feels that the verdict is the result of confusion in the minds of the jury, and to obtain the verdict of the jury after so re-charging the jury. " In order to answer this question, it is necessary to consider the provisions contained in the Code relating to trial of cases tried by jury. Section 297, Criminal Procedure Code, provides that in cases tried by jury, when the case for the defence and the prosecutor's reply are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided. Section 298 Criminal Procedure Code lays down that in such cases it is the duly of the Judge to decide all questions of law. Section 299 states that it is the duty of the jury to decide which view of the facts is true and also all questions, which according to law, are to be deemed questions of fact.

(2.) UNDER Ss. 298 and 299, Criminal Procedure Code, there is, therefore, a division of functions between the Judge and the Jury. All questions of fact are to be decided by the Jury, while questions of law most be decided by the judge himself. Section 300 states that after the Judge has finished his charge, the jury may retire to consider their verdict. Section 30i states that when the jury have considered their verdict, the foreman shall inform the Judge what is their verdict, or what is the verdict of a majority or that the jurors are equally divided in opinion. Section 302, Criminal Procedure Code, provides that if the Jury are not unanimous, the Judge may require them to retire for further consideration. Section 303, Criminal Procedure Code, empowers the Judge to ask such questions to the jury as are necessary to ascertain what their verdict is. This section enables the Judge to ask the jury such questions as are necessary to ascertain what the jury really meant by their verdict. It can, therefore be used only in cases in which the verdict of the jury is ambiguous. When, however, the verdict is free from ambiguity, no questions can be put under S. 303, Criminal Procedure Code. Section 304 provides that when by accident or mistake a wrong verdict is delivered, the jury may before or immediately after it is recorded amend the verdict and it shall stand as ultimately amend-ed. Section 306 provides that when the Judge does not think it necessary to express disagreement with the verdict of the jurors or of a majority of the jurors, he shall give judgment accordingly. Section 307, Criminal Procedure Code, states that if in any such case the Judge disagrees with the verdict of the jurors or of a majority of the jurors and is clearly of the opinion that it is necessary for the ends of justice to submit the case to the High Court, he shall submit the case accordingly.

(3.) IT will be seen from these provisions that the Code does not contain any specific provision empowering the Judge to re-charge the jury. The learned Government Pleader has urged that in the absence of any provision to the contrary in the Code, it is open to the Judge to re-charge the jury, whenever he finds it necessary to do so in the interest of justice. This argument cannot be accepted, because the Code lays down in detail the procedure, which is to be followed in trial of sessions cases tried by Jury. It is, therefore, not open to the Judge to follow any procedure other than that laid down in the Code.