EMPEROR Vs. PUTTAN HASSAN

JUDGEMENT

(1.) This is a petition to the Court to review the conviction of the accused of the offence of murder by the Bombay Sessions Court and the sentence of death passed upon him, the petition being based on a certificate of the Advocate General given under Clause 26 of the Letters Patent. The certificate granted by the Advocate General is that in his judgment the question whether the direction to the jury by the learned Judge in this case and the omission to direct the jury do not amount in law to a misdirection should be further considered by the Court. The basis of the petition for review is, therefore, that there were misdirections and omissions in the summing up of the learned Judge which amount to error in a point of law.

(2.) Section 297 of the Criminal Procedure Code provides that in cases tried by jury, when the case for the defence and the prosecutor's reply (if any) 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. It is, therefore, mandatory upon the Judge to charge the jury, and in so doing, to sum up the evidence for the prosecution and the defence and to lay down the law. The object of requiring the Judge to sum up the evidence is that he may render such assistance as he can to the jury by pointing out to them the salient evidence for both the prosecution and for the defence. It is not necessary for him to read his notes of the evidence to the jury, though it may often be desirable to read his notes of important parts of the evidence; nor is it necessary for him to go through the whole of the evidence. But he ought to refer to the salient parts of the evidence. Now what the learned Judge did in this case was that he first laid down certain general rules for the guidance of the jury in appreciating the evidence, and no exception is taken to that part of the charge. He also dealt with the law relating to murder, and it is not suggested that he gave any misdirection :in his statement of the law, although it is suggested that his direction did not go far enough, in that he omitted reference to the exceptions to Section 300 of the Indian Penal Code. He then asked the jury whether they desired him to read out his notes of any part of the evidence, and on the jury saying that they did .not so desire, the learned Judge really did not deal at all with the evidence. It is no doubt legitimate for a Judge to ask the jury whether they have a particular piece of evidence in mind, or whether it would help them for him to read his notes on the subject; but the Judge is bound to sum up the evidence, whether or not the jury desire him to do so. The learned Judge made some general observations about the nature of the prosecution case, he referred to the fact that there were discrepancies in the evidence, though he did not allude to any particular discrepancy, and he referred generally to the defence suggested in the cross-examination of the prosecution witnesses. But it is impossible to say, in my opinion, that he summed up the evidence -to the jury, and as the learned Judge omitted to sum up the evidence to the jury and failed to comply with Section 297, it is, in my opinion, established that there is an error of law which brings the case within Clause 26 of the Letters Patent.

(3.) The next point to consider is what our powers are in dealing with a case under Clause 26 of the Letters Patent. That clause provides that on its being certified by the Advocate General that in his judgment there is an error in the decision of a point or points of law decided by the Court of original criminal jurisdiction, or that a point or points of law which has or have been decided by the said Court should be further considered, the said High Court shall have full power and authority to review the case, or such part of it as may be necessary, and finally determine such point or points of law, and thereupon to alter the sentence passed by the Court of original jurisdiction, and to pass such judgment and sentence as to the said High Court shall seem right. It was admitted by Mr. Poonawalla on behalf of the accused, and I think quite rightly admitted, that the clause does not entail that whenever any misdirection is found to exist, the Court has no option but to set aside the verdict. To hold that we are bound to set aside the verdict whenever any misdirection is proved would be to disregard the direction in the section that we are to review the case. It is clear, I think, from the wording of Section 537 of the Criminal Procedure Code that it does not apply to a case dealt with under Clause 26 of the Letters Patent. But, in my opinion, we ought to apply to such a case the principle which underlies that section, that is, that where there has been no illegality in the mode of trial, but some irregularity in the process of trial, we are not entitled to set aside the verdict or judgment unless we are satisfied that that irregularity has led to a miscarriage of justice, or has prejudiced the accused. Mr. Velinker for the Crown has relied on the decision of a full bench of this Court, which is not reported: Emperor V/s. Leherchand Dayachand see p. 23, supra, where the judgment is in these terms:- Though our decision on some of the points raised by the Advocate General must be in the Accused's favour that does not entitle us to dispose of the case by simply quashing the conviction. For this Court to deal with the case now be novo no doubt transfers from the jury to this Court the determination of the question whether the legal evidence in the case is-sufficient to support a conviction against each of the accused but the authorities are conclusive that section 26 of the Letters Patent casts upon us that duty. It is, in my opinion, not necessary for us in this case to go as far as the Court went in that case, or to consider how far that ruling is in accordance with certain views of the Privy Council expressed in the well-known case of Subrahmania Ayyar V/s. King-Emperor (1901) I.L.R. 25 Mad. 61 It is, in my judgment, clearly open I to the Court to consider, not: so much, what effect: the misdirection has upon the minds of this Court sitting in place of a jury, but what the effect of the misdirection was or may have been upon the minds of the jury which tried the case; and in so doing we must, I think, assume that the jury was a reasonably competent jury, though we must remember that is jury consists of laymen, and that a misdirection may have more effect upon the minds of laymen than upon the mind of a trained Judge.