The State vs Ram Chandra Ghosal

Guha Ray, J.—This is a reference u/s 307, Code of Criminal Procedure, made by an Assistant Sessions Judge of Howrah in a case in which one Ram Chandra Ghosal was tried before him on one charge u/s 307, Indian Penal Code, and nine charges u/s 324, Indian Penal Code. The jury returned a unanimous verdict of not guilty in respect of the charge u/s 307, Indian Penal Code, but in respect of seven of the nine charges u/s 324, Indian Penal Code, by a majority of 3 to 2 they returned a verdict of guilty and in respect of the other two charges u/s 324, Indian Penal Code, they returned a verdict of not guilty. The learned Judge accepted the unanimous verdict of the jury in respect of the charge u/s 307, Indian Penal Code, and also the majority verdict of not guilty in respect of two of the nine charges u/s 324 and actually recorded an order of acquittal in respect of those charges. But disagreeing with the majority verdict of the jury in respect of seven charges u/s 324, Indian Penal Code, he has referred this case.

At the very outset Mr. Sen on behalf of the State raised a preliminary point, namely, that the learned Judge was not justified in recording an order of acquittal in respect of the charge u/s 307, Indian Penal Code, and in respect on two of the nine charges u/s 324, Indian Penal Code, in which he agreed with the verdict of the Jury, but what he should have done was to refer the whole case. It is undoubtedly true that Section 307(2), Code of Criminal Procedure, requires the learned Judge whenever he submits a case under this section not to record judgment of acquittal or conviction on any of the charges on which the accused has been tried, the obvious idea behind this being that whenever a reference has to be made u/s 307, Code of Criminal Procedure, the whole case has to be referred so that the High Court may deal with it as a whole untrammeled by any final order on any part of the case so as to exclude that part from the scope of its examination. The learned Judge, therefore, was undoubtedly wrong in what he did. But the question we have to ask ourselves is whether the whole reference is invalid on that ground. No case has been cited before us either of this Court or of any other High Court in which it has been held that in such a case the whole reference is invalid. On the other hand there are cases in which it has been held that although the reference is imperfect in a case like this and although it may be a ground for rejection of the reference, the reference has been treated as valid and final order on the case passed. In Emperor v. Bishnn Chandra Das (1933) 37 C.W.N. 1180 it was held that the Judge had no power to record judgment in respect of certain of the charges in accordance with the jury''s verdict which he accepted and to refer the case in respect of the certain other charges with the verdict on which he disagreed. But it was not held either expressly or by implication that the reference was incompetent. One of the three Judges, McNair, J., however, observed that the learned Judge had disabled himself from making a valid reference u/s 307 of the Code of Criminal Procedure by accepting the verdict of the Jury against the accused on some of the charges. In the leading judgment delivered by Ghosh, J., the reference is described at one place as imperfect and at another as illegal, but nowhere as quite invalid. Ultimately, on a partial examination of the evidence, the accused was acquitted, one of the grounds of acquittal being the character of the reference. In King-Emperor v. Annada Charan Ray (1916) 21 C.W.N. 435. this Court accepted such a limited form of reference but at the same time said that by this limited form of reference the High Court was precluded from considering the entire evidence on the record and on such reference all that the High Court had to decide was whether the verdict of the jury on the charges as to which there was disagreement between the judge and the jury was a reasonable verdict which a body of reasonable men could arrive at, having regard to the evidence bearing on these charges. Then on a consideration of the evidence regarding the charges on which the case was referred they ordered an acquittal of the accused on the strength of the verdict of the jury and rejected the reference. This case was referred to in the Patna case, Emperor v. Hazari Lal (1932) 33 Cri.L.J. 505 in which it was held that if the High Court took up the case it would be constrained by the verdict on one part of the transaction which was accepted by the Judge, so that on that ground alone the reference was rejected. In this case,-however, the High Court did not record any order of acceptance of the verdict of the jury on the first charge on which the case was referred and of an acquittal on that charge. These three cases are typical rather than exhaustive. None of them expressly lays down the proposition that the reference is altogether invalid, though Mc Nair, J. in the first went as far as saying that the Judge disabled himself from making a valid reference. The first two again deal with the case within the limits of the reference, the second speaking of the reference as a limited one. In the first, even McNair, J., while making the observation referred to, does not go to the length of saying that there being no valid reference before the High Court, the case either as a whole or in part is not validly before the Court, so as to entitle it to accept or reject the verdict of the Jury and to pass final orders on the basis of such acceptance or rejection. In the third, the frailty of the reference by itself was held to be a sufficient ground for its rejection and the High Court refused to go in to the merits for the simple reason that it could not effectively and properly deal with the case, handicapped as it was by the limited character of the reference. The evident result in this case of the High Court''s refusal to deal with the merits was that there was no final order passed on the first charge u/s 302; Indian Penal Code, on which the jury had found the accused not guilty and the trying Judge was of opinion that this verdict was perverse and should be set aside and the accused convicted.

The question, therefore, whether such a reference is invalid has not really been finally decided in any of these cases and as already stated, no case could be placed before us exactly to the point. Section 307, Code of Criminal Procedure, has, therefore, to be examined afresh in a search for a correct solution. The Privy Council in (1946) L.R. 73 I.A. 174 (Privy Council) examined at length the different provisions of the Code, including Section 307 in its attempt to find out the true scope of a jury trial and that of an assessor trial. What it says of Section 307 and of the duty of the High Court in this connection is illuminating and well worth reproduction:

Under Section 307(1) two conditions are required to justify a reference. The first that the Judge must disagree with the verdict of the jury, calls for no comment, since it is obviously the foundation for any reference. The second, that the Judges must be clearly of opinion that it is necessary for the ends of justice to submit the case is important and in their Lordships'' opinion provides a key to the interpretation of the section. The legislature no doubt realised that the introduction of trial by jury in the mofusil was experimental and might lead to miscarriage of justice through jurors, in their ignorance and inexperience returning erroneous verdicts. Their Lordships think that the section was intended to guard against this danger and not to enable the Sessions Judge and the High Court to deprive jurors, acting properly within their powers, of the right to determine the facts conferred on them by the Code. If the jury have reached a conclusion on the evidence which a reasonable body of men might reach, it is not necessary for the ends of justice that the Sessions Judge should refer the case to the High Court, merely because he himself would reach a different conclusion on the facts, since he is not the tribunal to determine the facts. He must go further than that and be of opinion that the verdict is one which no reasonable body of men could have reached on the evidence. The powers of the High Court in dealing with the reference are contained in Sub-section (3). It may exercise any of the powers which it might exercise on an appeal and this includes the power to call fresh evidence conferred by Section 428. The court must consider the whole case and give due weight to the opinions of the Sessions Judge and jury and then acquit or convict the accused. In their Lordships'' view the paramount consideration in the High Court must be whether the ends of justice requires that the verdict should be set aside.

Section 307, examined in the light of the above, clearly shows that the essential conditions requisite for a reference are first that the Judge must disagree with the jury and secondly, that be must be clearly of opinion that it is necessary for the ends of justice to submit the case. If both these conditions are satisfied, the Judge is entitled to make a reference. In this case the judge disagreed with the jury''s verdict of guilty in respect of seven out of the 9 charges u/s 324, Indian Penal Code, and was clearly of opinion that it is necessary for the ends of justice that the case should be submitted to the High Court. The reference would,'' therefore, be perfectly valid if his order of acquittal of the, accused in respect of the other charges would not render it invalid. The nature of the direction in Section 307(2) has now to be considered. It will not perhaps be inappropriate to preface an examination of this direction with the observation that neither in making a reference nor in making an order of acquittal or conviction against the provisions of Section 307(2) is the question of the Court''s jurisdiction involved, its jurisdiction being the jurisdiction to try the case and the different powers it exercises in the course of the trial being really incidents of the exercise of that jurisdiction. Neither the reference nor the order of acquittal can thus be said to be without jurisdiction. But still a question, somewhat analogous to though not identical with, that of the court''s lack of jurisdiction arises if a reference is made without the two preliminary conditions being satisfied. A power to be exercised only when some prelirnanry conditions have been fulfilled cannot be legally exercised till those are fulfilled. Such an exercise of the power is invalid in law, though it is not without jurisdiction because the exercise of this power is only an incident of the Court''s jurisdiction to try the case. Is the direction contained in Section 307(2) also such a preliminary condition on the fulfillment of which depends the validity of the reference? If it is, the reference is invalid; if it is not, the reference is valid.

Section 307(1), as pointed out by the Privy Council, lays down the essential prerequisites to a reference and then Section 307(2) provides that whenever the judge submits a case under this section, he shall not record judgment of acquittal or conviction on any of the charges on which he has been tried. The question now arises whether the conditions laid down in Sub-section (1) are the only conditions to be satisfied before the judge is entitled to make a reference or Sub-section (2) lays down a third condition which also must be satisfied before a reference can be made? If the two Sub-sections are read together and if the use of the word "if" with which Sub-section (1) begins be contrasted with that of the word "whenever" at the commencement of Sub-section (2), one can have hardly any room for doubt that the first alone lays down the conditions which must be satisfied before the Judge is entitled to make a reference and what Sub-section (2) does is merely to lay down a rule to be observed in making a reference. A clue to the real object which Sub-section (2) has in view is to be found in Sub-section (3) under which the High Court in dealing with a reference can exercise all those powers which it can exercise on appeal and subject to this, it shall, after considering the entire evidence,.....acquit or convict the accused. In dealing with a reference, therefore, the High Court has to consider the whole evidence and if a final order of acquittal or conviction is recorded, the High Court is placed in the awkward position of having to consider only a part of the evidence so as to be able to form a correct opinion on the question whether a reasonable body of men could have arrived at the conclusion which the jury arrived at on the evidence before it. This analysis of the Sub-sections shows that what Sub-section (2) lays down is not an essential preliminary to a reference, as are the two conditions laid down in Sub-section (1) but it is merely a directory provision, as distinct from one that is absolute, meant for the purpose of securing an examination of the entire evidence by the High Court, unhampered by any final order relating to any of the charges. In this view, the learned Judge''s non-compliance with it does not in any way invalidate the reference. The reference must accordingly be held to be valid in law.

This, however, does not solve the whole difficulty created by the recording of a final order by the referring Judge and a further question, arises, namely whether the reference is a reference of the whole case or of only that part of it on which there is disagreement between the Judge and the jury. In Annada Charan Ray''s case (2) and in Hazari Lal''s case (3) the references were treated as being of limited scope. But if one may say so with the utmost respect, such a limited form of reference is not contemplated by Section 307 at all. Sub-section (1) uses the following words "If in any such case... to "submit the case..... he shall submit the case "accordingly" To be able to understand what the phrase "in "any such case" and the words "the case" in Sub-section (1) really mean it is necessary to go backward to Section 306(1) which opens with the words "when in a case tried before the Court of "Session". Evidently then, the words "in any such case" and "the case" in Sub-section (1) of Section 307 mean a case tried before the Court of Sessions. Now though parts are included in the whole this principle is not embodied in the General Clauses Act as a rule of interpretation as is the principle of the singular including the plural and vice versa. In the absence, therefore, of anything in the section to indicate beyond doubt that a part of a case can be referred, it has to be held as a matter of construction that what can be referred u/s 307 is the case tried before the Court of Sessions or the whole case and not merely a part of it. That this is so, is made clear beyond any possibility of doubt by Sub-sections (2) and (3) of Section 307, for if a part only could be referred, there would be no sense at all in directing the Judge to refrain from recording a final order and in laying down that the High Court is to consider the entire evidence. It is not that these considerations were not present to the mind of the learned Judges who decided the cases referred to, but somehow or other instead of probing the matter a little further, they appear to have persuaded themselves that the apparent was the real state of affairs or in other words, that the learned Judge having himself disposed of a part of the case by his own final order had only a part left for reference and could not possibly have referred more than that part. This view, if one may say so with respect, attaches to an order which on the face of it is in contravention of a provision of law and a piece of inadvertence on the part of the Judge, an importance and value which it cannot possibly possess in law.

In the present case, the learned Judge has agreed with the verdict of the jury on the charge u/s 307, Indian Penal Code, which, by the way should have been split up into as many charges under the same section as there are persons mentioned in it, and also on two of the charges u/s 324, Indian Penal Code, and he has recommended an acquittal of the accused on the remaining seven charges u/s 324, Indian Penal Code. As we accept the reference it is not really necessary for us to set aside the learned Judge''s order of acquittal on the charge u/s 307 and on two of the charges u/s 324, Indian Penal Code. It is enough for the purposes of this reference to ignore altogether this irregular order which should never have been made or in other words, to treat this order as non-existent. In a case where it is necessary for the High Court to set aside the final order whether of conviction or acquittal, it has ample powers to do so in its provisional jurisdiction u/s 439, Code of Criminal Procedure. Section 435, Code of Criminal Procedure, entitles the High Court to call for the record of a Sessions trial. Section 439, Code of Criminal Procedure, enumerates the powers which the High Court can exercise in its provisional jurisdiction and in doing so, the section mentions proceedings which have come before the High Court in one of three different ways, namely, first proceedings of which the records have been called for by itself u/s 435, Code of Criminal Procedure, secondly, proceedings which have been reported for its orders u/s 438, Code of Criminal Procedure, and thirdly, proceedings "which have otherwise come to its knowledge". A proceeding in a Sessions trial in which the Judge, evidently through inadvertence, records a final order in spite of a direction to the contrary in Section 307(2), Code of Criminal Procedure, when it comes before the High Court on a reference u/s 307, Code of Criminal Procedure, would obviously be a proceeding which comes to the knowledge of the High Court otherwise than in the two other modes mentioned in Section 439. The High Court would thus be entitled in the exercise of its provisional powers u/s 439, Code of Criminal Procedure, to set aside a final order of acquittal or conviction passed by the referring judge in clear contravention of a provision of law, so as to sweep out of its way at once the formal obstacle set up by the final order of the Judge, to a consideration of the whole case by the High Court,-a duty imposed on the High Court under the law. Whether in any particular case the High Court chooses to ignore this order altogether or to set it aside, it does in effect do one and the same thing, namely that by completely ignoring or undoing what should not have been done, it takes that as done which should have been done under the law.

The case for the prosecution briefly was that on July 7, 1952, four Punjabi durwans of the Ghosals of Joynagar, a family to which the accused Earn Chandra Ghosal belongs, chased a boy named Kanta Bag up to the gate of the house of his maternal uncle Panchu Hoy when the female folk of the-house cried out in fear and there was a row. Santosh Kumar Charit (P.W. 1) came out and met one Kati Grhosal and protested to him about the conduct of the Punjabis. Then one of the Punjabis struck him on the head with a sheathed sword and he fell down into the water of a tank known as Roy Pukur which lies on the eastern side of the District Board Road running from north to south. This happened at about 5 or 5-30 p.m. As a result of this incident about 20 or 25 men assembled at the place and thereafter Ram Chandra Ghosal and Rabindra Nath Ghosal armed each with a gun were seen standing, according to one version near a tamarind tree just to the north of the Kulungi Pukur which is about 50 or 60 cubits to the south of Roy Pukur and according to another version under a jack-fruit tree which is just to the north of Chanditala, the distance of which from Roy Pukur is about 100 cubits. The prosecution case is that Ram Chandra Ghosal then fired three or four times upon the crowd and as a result Ghrita Kumar Roy. Methar Barui, Lalmohan Manna and others num bering eleven in all were injured with gunshot. Tarak Charit, brother of Santosh Kumar Charit, went to the police-station and lodged an F.I.R. at 7-15 p.m. on the same date. The police visited the place of occurrence that very night, and that very night the two guns which Ram Chandra Ghosal and Rabindra Nath Ghosal were alleged to have been armed with at the time of the occurrence were seized along with 21 live cartridges. Next day one fired cartridge case was handed over to the investigating officer by Balai Charan Roy (P.W. 3) who in his turn got it from Arjun Dhara (P.W. 16) who had picked it up from near the jack-fruit tree. The injured persons were taken to the Howrah General Hospital where they were examined by different doctors including a radiologist. Two pellets were extracted from the bodies of Lalmohan Manna and Ganesh Chandra Kanthal. It was found that a foreign body looking like gunshot was lodged in the body of Methar Barui. But as regards the injuries of Phani Bhusan Das and Panehanon Giri, the doctors could not come to any definite opinion.

Initially there was a case against Rabindra Nath Ghosal and others also, but the proceedings against them were quashed and the High Court directed the commitment of Ram Chandra Ghosal. This trial, was the result.

The defence of the accused was that there was an incident following the chase of Kanta Bag by the Punjabi durwans of the Ghosals when the women of the house of Panchu Roy cried cut in fear and a bugle was blown by some of the people of Raipara with the result that people from different parts of the village flocked on the bank of the tank. The Punjabis were then surrounded and one Sufal Chandra Dhara got hold of the shirt of one of the Punjabis. The Punjabis somehow managed to run away but the crowd again assembled and surrounded them and in the meantime some one fired a pipe gun as a result of which injuries to different persons were caused.

The learned Judge has referred in detail in his summing up as well as in his letter of reference to important discrepancies in the prosecution case. We have satisfied ourselves that these discrepancies do exist. An important major discrepancy in the prosecution evidence is as to the place from which the accused is alleged to have fired his gun. In court all the eye-witnesses said that he was standing near the jack-fruit tree when he fired. In the F.I.R. lodged by Tarak Charit this was not stated but what was stated is that the accused stood at a distance of 50 or 60 cubits evidently from the place where the men were hit and this would be clearly not Kanthaltala which is as already stated, near Chanditala about 100 cubits from Roypukur, but it would be near the tamarind tree which is just to the north of Kulungi Pukur. Before the committing Magistrate, Ghrita Kumar Roy, P.W. 4 and Methar Barui, P.W. 7, stated that the accused with the Punjabis were standing near the bank of the tank by which they presumably meant Kulungi Pukur which is about 50 or 60 cubits away. Witnesses Nos. 6, 14 and 15 stated in the court of the committing Magistrate that the Punjabis stood near the tentul-tala but here, as already stated, the eye-witnesses say that the accused and the Punjabis stood near the jack-fruit tree, from near which a fired cartridge case is alleged to have been picked up.

What, however, is conclusive in the case is the opinion of the arms expert, witness No. 24 for the prosecution, which is to the effect that the pellets two of which were found lodged in the tamarind tree and two of which were extracted from the bodies of Lalmohan Manna and Ganesh Chandra Kanthal, witnesses nos, 5 and 9, were similar. But they were dissimilar to the shots which the 21 live cartridges contained and what is more important is that the fired cartridge case (Ex. 1) which is said to have been picked up by Arjun Dhara from near the temple could not have been fired from either of the two guns seized from the accused and Rabindra Ghosal. The expert compared the striking marks on the percussion caps of the test cartridge cases fired by Limself from the two guns in question with the mark on the percussion cap of the cartridge case recovered from near the temple and found them quite dissimilar. This piece of evidence is conclusive proof that the shots could not possibly have been fired from either of the two guns which Ram Chandra Ghosal and Rabindra Nath Ghosal were alleged to have been armed with. It appears from the learned Judge''s summing up that during arguments on behalf of the prosecution an alternative case which, however, the evidence does not make out, was put forward, namely, that the shots might have been fired from a third gun. The learned Judge should have immediately stopped such arguments because it was not open to the prosecution to advance such a speculative argument when in the evidence there was not even a hint of such a case. It is presumably this which influenced the jury in ignoring the expert''s evidence, in the face of which no reasonable body of men could have come to the conclusion that the injured men were hit by shots fired by the accused from one of the two guns seized that very night and that the accused was guilty of any of the charges u/s 324, Indian Penal Code. That being so, the verdict of the jury that the accused was guilty on seven out of the nine charges u/s 324, Indian Penal Code, is manifestly perverse, the evidence of identification notwithstanding. It is clear from the evidence on record that the evidence of identification has to be taken with a very large grain of salt, regard being had first to the distance between the place where the injured persons were actually hit and the place where the accused was said to have been standing armed with a gun and secondly to the fact that in between these two points there were trees and gardens so as to obstruct the line of vision of the witnesses and make it almost impossible for them to identify some one standing near the jack-fruit tree.

In all these circumstances the reference must be accepted, the verdict of the jury finding the accused guilty on seven out of the nine charges u/s 324, Indian Penal Code, set aside and the accused acquitted. The accused is discharged from his bail bond.

Mitter, J.

I agree.