EMPEROR Vs. MUKTAR ALI

JUDGEMENT

(1.) The facts from which the present reference and appeal arise are stated conveniently in the following extract from the letter of reference: The prosecution case is that on the afternoon of Thursday, the 30 April last, four persons, viz., Hatem, Arshed, Abdul Aziz and Safiladdi were coming to Jaliaghata from Mithapur. When they came to the south-west of the house of one Kashem, in Jaliaghata, a party of armed men headed by one Seru attacked them. Arshed and Abdul Aziz fled into the house of Kasem unscathed. Hatem, Safiladdi and his brother Paban who came to their rescue, were injured with lejas. The injured men ran inside Kasem's house and took shelter in his hut. Hatem fell down on the door leading to the hatina of the hut. They were chased by the assailants. Hatem's mother came there running from her house which is close by and lamented over her son. Seru hurled a leja which struck Hatem's mother JarinaBibi. She at once fell dead there. The accused pleaded not guilty. They suggested a different version of the occurrence at a different place. They further suggested that Paban killed Jarina Bibi with leja.

(2.) Fourteen accused were convicted under Section 148, Indian Penal Code, on an 8 to 1 verdict. With regard to the charge under Section 149 and 302, Indian Penal Code, the jury returned a unanimous verdict of not guilty in favour of 5 accused and a verdict of guilty, by 5 to 4, in respect of the remaining accused whose cases have been referred by the learned Additional Sessions Judge. The learned Additional Sessions Judge agreed with the whole of the verdict of the jury except the majority verdict of guilty under Section 149 and 302. His reasons for reference were that this part of the verdict was based on misappreciation of evidence, there being no grounds for discrimination as between the five accused unanimously found not guilty and the nine accused found guilty by a majority verdict of 5 to 4; further that certain witnesses for the prosecution had been withheld whose evidence was so material that the jury ought to have presumed against the prosecution. The appeal is on behalf of the fourteen accused who were convicted under Section 148, Indian Penal Code, and sentenced to rigorous imprisonment for one year each except in the case of 3 persons who were given the benefit of Section 562, Criminal P.C. When the hearing opened a preliminary objection was taken on behalf of the Crown. Section 307(2), Criminal P.C,.runs: "Whenever the Judge submits a ease 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. . ." The words "such accused" refer to the words "any accused person" in Sub-section (1); these words in both Sub-sections were inserted by the amending Act of 1923 to remove doubts, which had arisen from certain decisions, whether it was competent to a Sessions judge to refer the case of one or some only of a number of accused persons. On the statute as it now stands, the present reference evidently cannot be attacked on the ground that the reference ought to have been made in respect of all the accused persons and of all the charges. We make these observations as the Crown first submitted that the reference was bad for the reason just stated. This submission was sought to be supported by the observations of Lort-Williams J. in Emperor V/s. Bishnu Charan . Apart, however, from the consideration that the observations of the learned Judge are not part of the findings of the Court it is clear from the text of those observations that the headnote does not represent them with complete accuracy; in particular para. 3 of the decision appearing at page 1184, may be referred to.

(3.) An objection of some substance is however that the reference in its present form is incompetent. It will be observed that the 9 persons whose cases are now referred were among the 14 convicted Under Section 148. For the Crown the case in Emperor V/s. Taribulla ( 21) 8 A.I.R. 1921 Cal. 252 was referred to. This decision was before the 1923 amendments but its authority is not affected thereby as the defects in the Order of reference were different from those in the present Order and the case remains an authority for the proposition that "only where the Sessions Court has made a proper reference will the High Court deal with the matter." In that case, however, the defects were remediable and this Court sent the reference back for the defects to be remedied and afterwards dealt with the reference in due course. The difficulty arising from the terms of the statute as it now stands was not in issue in that case and we are unable to treat it as an authority governing the present reference. The learned advocate for the Crown referred to the judgment of the Court in Emperor V/s. Bishnu Charan . In that case the Court rejected the reference firstly on the ground that the learned Sessions Judge had acted illegally in making a reference after recording an Order in respect of other charges against the accused person. We observe, however, that two of the learned Judges explicitly considered the evidence and rejected the reference also on the merits. The remarks of the third Judge at p. 1185 of the Report are consistent equally with the view that he did the same as with the view that he considered the legal objection fatal. We hesitate to hold that two at least of the three learned Judges who decided that case considered the legal objection taken by itself was necessarily fatal to the reference. We have also had our attention directed to an unreported decision, Ref. No. 24 of 1933, Emperor V/s. Pocha Mondal, in which Mukherji and Bartley JJ., observed: