Ramjanam Tewari and others vs Emperor

Dhavle, J.—This is a reference under S. 307, Criminal P.C., made by the Additional Sessions Judge of Shahabad in a case which was committed to the Court of Session under Ss. 366, 420 and 120B, Penal Code. It appears that on the assurance of the Assistant Public Prosecutor that there was authority for adding a charge under S. 498, Penal Code, the learned Judge framed an additional charge under this section, even though there had been no complaint up to that stage by any person competent under S. 199, Criminal P.C., to make one. The charges under Ss. 366 and 493 were tried by jury, and the jury brought in, a unanimous verdict of guilty under S. 498 against four of the accused persons and of not guilty under that section against the other accused persons, and of not guilty under S. 366, in respect of all the accused persons. The Judge told the jury that the Assistant Public Prosecutor had not been able to satisfy him that S. 199, Criminal P.C., did not prevent the Court from taking cognizance of an offence under S. 498, Penal Code, and he left it to them to consider whether the charge under S. 498, Penal Code, was proper. The verdict of the jury shows that they considered that the charge was "proper" (to use the language of the learned Judge), and as this was not his view he has made this reference under S. 307, Criminal P.C.

On the face of it the reference is incompetent. S. 307 is clear enough, and has been interpreted in several cases, including Emperor v. Hazrai Lal, 1932 Pat 156 = 1932 Cr C 273 = 137 IC 100 = 33 Cr LJ 505 = 11 Pat 395, which was decided in this Court not long ago and which points out how it is not open to a Court of Session to accept the verdict of the jury on one charge and disagree with the jury on another charge and refer the matter to the High Court under S. 307, Criminal P.C. The learned Judge has apparently accepted the verdict of the jury in respect of these four persons on the charge under S. 366, for he has limited his reference to the charge under S.498 and says that the verdict on it is "contrary to law." Limiting the reference in this manner is however not the only error that the learned Additional Sessions Judge has fallen into. Whether the charge under S. 498, Penal Code, was or was not "proper" as the Judge called it, was a question of law; and under S. 298, Criminal P.C., it was his plain duty to decide that question himself instead of leaving it to the jury. Why he should not have called upon the Assistant Public Prosecutor to produce his authorities then and there and looked into them before proceeding with the trial instead of acting on his assurance and framing the charge, does not appear any more than why he should finally have left to the jury what it was for himself to decide. If the Additional Sessions Judge was not really satisfied that the additional charge was not "proper" there was no reason whatsoever why he should have treated it as question of fact and left it for the jury to deal with. But the rejection of the reference as incompetent is not the only order that we are called upon in the circumstances of this case to make. We think we ought to point it out to the Court below that the charge under S. 498 was clearly framed and tried without any jurisdiction at all, having regard to the terms of S. 199, Criminal P.C., and that all the proceedings that have followed upon that charge arc equally without jurisdiction. It is in fact impossible to do anything with that charge in the absence of a complaint under S. 199, so far as the trial referred to us is concerned.

It appears from the record that the learned Judge has also fallen into another error. The charge under S.120B, Penal Code, was dropped on the ground that no sanction was obtained. But the object of the conspiracy was to I commit cognizable, offences punishable with rigorous imprisonment for more than two years, and it should have been obvious to the Assistant Public Prosecutor and the Additional Sessions Judge, from a mere perusal of S.196-A (2), Criminal P.C. that in such a case no "sanction" was necessary.

Rowland, J.

I agree.