JOGNESWAR GHOSH Vs. EMPEROR

JUDGEMENT

(1.) This appeal raises a point which had not come to us before, although it might be expected to be raised every week, if not every day. The appellants with certain other persons were put on their trial, charged with offences punishable under Sub-section 395 and 399, I. P. C. They were further charged with a conspiracy to commit both those offences. The jury brought in a unanimous verdict of not guilty. The learned Judge acquitted all the accused persons of the main charges and then proceeded to convict them of an offence punishable under Section 395 read with Section 120-B, holding that the Jury were assessors and that he was entitled to take a contrary view. The first point taken on behalf of the appellants was that these gentlemen were not assessors but Jurymen and that the learned Judge had no jurisdiction to convict them in the face of the verdict of acquittal. In view of the provisions of Section 269, Criminal P. C., there can be no doubt that the normal procedure under the Code is trial by assessors, and it is only when the local Government publish an order in the Gazette that the trial of an offence becomes triable by Jury. Such orders may be made or revoked at any time. The offence of which the appellants have been convicted is one triable under Ch. 5-A, I. P. C. The learned advocate who has appeared on behalf of the appellants has not been able to show to us any notification of the Local Government directing that such an offence is triable by jury. We must therefore overrule this preliminary objection.

(2.) The only remaining question is whether we can uphold the convictions. It would certainly be a most extraordinary thing that, if the main part of the case were disbelieved and an order of acquittal passed, the accused persons should be convicted on the substratum, if any, which remains. The learned Judge in this case has taken the remarkable course of convicting the appellants on his own view of the facts without giving any reason whatsoever. The learned Deputy Legal Remembrancer, with his usual fairness, stated that he could not support this and that the evidence in the case is not such that we ought to say that a finding of guilty is the only reasonable or proper finding. We are certainly not prepared to accept the opinion of the learned Judge as opposed to the unanimous opinion of the Jury sitting as assessor s, when no reasons for that opinion are assigned at all. We, accordingly, allow this appeal, and set aside the convictions and sentences. The appellants, who are on bail, are discharged from their bail bonds. The fines, if already paid, will be refunded to them. Cunliffe, J.

(3.) I agree.