EMPEROR Vs. BISHNU CHANDRA DAS

JUDGEMENT

(1.) In this case four men Dulapado, Purna, Charu and Bishnu were tried by the learned Additional Sessions Judge of Howrah and a Jury of nine persons Each of them was charged under section. 364 (abduction with intent to murder), Section 394 (causing hurt in committing robbery) and Section 302 (murder) and also criminal conspiracy to commit each of the above three offences. The Jury unanimously found Dulapado Mal not guilty of all the six charges. They by a majority returned a verdict of not guilty as against Purna Chandra Kanrar and Charu Chandra Palain in respect of all the charges. With regard to Bishnu Chandra Das, in respect of abduction and conspiracy for abduction they unanimously found him not guilty; in respect of murder and conspiracy to murder they found him not guilty by a divided verdict of 6 against 3. In respect of conspiracy for robbery, they found him not guilty by a divided verdict of 7 against 2. In respect of Section 394, they found him not guilty by a divided verdict of 5 against 4. The learned Sessions Judge accepting the verdict of the Jury acquitted first three men of all the charges. He also accepted the verdict of the Jury in respect of five of the charges against Bishnu and acquitted him of those charges. This was on the 28 April, 1933. He did not then pass any order against Bishnu in respect of Section 391 of the Indian Penal Code. About ten days later on the 8 May, he wrote the following order: I have given very careful thought to the case against the accused Bishnu Chandra Das under section 394, Indian Penal Code, and am unable to agree with the Jury's majority verdict of not guilty. I consider the verdict to be perverse and absolutely against the weight of evidence and in the interests of justice. I decide to refer this part of the case under section 207, Criminal Procedure Code, to the Hon(sic)bio High Court for orders

(2.) Before we consider the evidence, it should be noted that the learned Sessions Judge acted illegally in making this imperfect reference. Ho acted under sub- Section (1) of Section 307, Criminal Procedure Code, which states: When the Judge disagrees with the verdict of the Jurors or a majority of the Jurors on all or any of the charges on which any accused person has been tried and is clearly of 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 accordingly.

(3.) The learned Judge apparently omitted to peruse sub- Section (2) of Section 307 which states: Whenever 1he 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.