EMPEROR Vs. DULLU KUER

JUDGEMENT

(1.) This is a reference under Section 307, Criminal P.C., by the learned Sessions Judge of Saran. Two persons, Dullu Kuer and Raohheya Teli, were tried before him with the aid of a jury: Dullu Kuer upon a charge under Section 457; Indian Penal Code, and Rachheya Teli upon charges under Secs.457 and 380, Indian Penal Code. The jury after retiring for twenty minutes, returned a unanimous verdict of not guilty in the case of both accused persons. The learned Sessions Judge was not prepared to accept this verdict, and remarked that he considered it perverse and unreasonable, and that he was clearly of Opinion that it was necessary for the ends of justice to submit the case in respect of both the accused persons to the Honble High Court. After the verdict of the jury in accordance with the provisions of Section 310, Criminal P.C., a previous conviction for an offence under Section 396, Indian Penal Code, in the year 1931, upon which he bad been sentenced to undergo eight years rigorous imprisonment, was proved against the accused Dullu Kuer, and was admitted by him.

(2.) At the opening of this case, a preliminary point was taken by Mr. Chakravarty on behalf of the accused persons. He argued that the Court in hearing a reference against the verdict of a jury under Section 307, Criminal P.C., has only the same powers that it would have in hearing an appeal from the decision of a jury and therefore the Court cannot go into the evidence at all, having regard to the provisions of Section 423(2), Criminal P.C., unless it is first shown that there has been a misdirection, or that, the jury has misunderstood the law as laid down by the Judge. This argument is based on the wording of Section 307, Clause (3), which provides that: 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 the jury, acquit or convict the accused of any offence of which the jury could have convicted him 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 Session.

(3.) It is urged that the use of the words "subject thereto" indicates that the direction to consider the entire evidence and so on only can have effect in a case where that could be done in exercise of the ordinary appellate powers, which are limited in the case of jury trials by the provisions of Section 423(2), Criminal P.C. This view, in my opinion, ignores the specific character of the directions laid down in the latter part of the clause, but I do not consider it necessary to examine this question in detail, because that has been already done by a Full Bench of the Allahabad High Court in Emperor V/s. Shera, .