Jury trial—Reference to High Court
The provisions of S. 307 were in the following terms:
S. 307 of the Code of Criminal Procedure-1898
“307. (1) If in any such case the Judge disagrees with the verdict of the jurors, or of a majority of the jurors, on all or any of the charges on which (any accused person) has been tried, and is clearly of the opinion that it is necessary for the ends of justice to submit the case (in respect of such accused person) to the High Court, he shall submit the case accordingly, recording the grounds of his opinion, and, when the verdict is one of acquittal, stating the offence which he considers to have been committed (and in such case, if the accused is further charged under the provisions of S. 310, shall proceed to try him on such charge as if such verdict had been one of conviction).
(2) Whenever the Judge submits a case 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, but he may either remand (such accused) to custody or admit him to bail.
(3) In dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the Jury, acquit or convict (such accused) of any offence of which the Jury could have convicted him upon the charge framed and placed before it; and, if it convicts him, may pass such sentence as might have been passed by the Court of Session.”
In construing S. 307 we must consider first the words “if in any such case” at the very commencement of the section. These words refer to the case mentioned in S. 306 (1). That case is the case which is tried before the Court of Session by a Jury and therefore obviously the whole case and not a part of it. When the Jury have given their verdict in the case, then the Judge has to consider whether he agrees with it and, if he does, then he must give judgment accordingly. If, however, he disagrees and is clearly of the opinion that it was necessary for the ends of justice to submit the case to the High Court he must submit the case accordingly. In our opinion, the case to be submitted to the High Court is the whole case against the accused and not a part of it. This appears to us to be clearly the effect of the provisions of Ss. 306 and 307 when read together. Section 307 (2) specifically prohibits the Judge, when he considers it necessary to submit the case by way of reference to the High Court, from recording any judgment of acquittal or of conviction on any of the charges on which the accused had been tried. This prohibition is mandatory and a Judge, who records a judgment of acquittal or of conviction on any of the charges on which the accused had been tried, contravenes the provisions of S. 307 (2) and the judgment so recorded is illegal. We cannot accept the submission of the learned Counsel for the appellants that the action of the Judge in recording a judgment is a mere irregularity. S. 307 (3) provides for the powers which the High Court may exercise in dealing with the case so submitted and it enjoins that although the High Court may exercise any of the powers conferred on it, when hearing an appeal, it should consider the entire evidence and after giving due weight to the opinion of the Sessions Judge and the Jury, either convict or acquit the accused of any offence for which he was tried, and if it convicted him of an offence for which the Jury should have convicted him, pass such sentence as might have been passed by the Court of Session. But before the High Court could exercise the powers conferred on it under S. 307 (3) it was necessary that the reference under S. 307 should have been according to law. This was, in our opinion, a condition precedent to the exercise of such power by the High Court. The words “with the case so submitted” make it quite clear that a reference under S. 307 (1) must be of the whole case against the accused and not a part of it. In order that the High Court may be in a position to properly exercise its power under S. 307 (3), it was necessary for it to consider the entire evidence in the case, which obviously it could not do if the trial judge had already recorded a judgment. By recording a judgment the trial Judge prevents the High Court from properly exercising its powers under S. 307(3) as the reference made thereafter is not of the entire case with respect to the accused. Indeed, in the present case the Judge having accepted the Jury’s verdict and having recorded a judgment of acquittal under S. 304/149, Indian Penal Code, in the case of each accused, took it out of the hands of the High Court to deal with the case of each accused reference to the other charges framed against him.
The effect of the amendments to S. 307 of the Code made in 1923 and 1955 lend further support to the view that it is the whole case which must be referred and not a part of it. The provisions of S. 307 (1) before the amendment of 1923 were so expressed as to make it possible to say that it was necessary for the trial Judge to refer the whole case concerning every accused on all the charges framed against them irrespective of the fact that the Judge was in agreement with the Jury with respect to a particular accused on all the charges framed against him. The amendment of 1923 introduced the words “any accused person” in place of the words “the accused” and “in respect of such accused person” in S. 307 (1). The amendment, accordingly, enabled the Judge to accept the verdict of the Jury on all the charges framed against any accused person and to record a judgment with reference to him while referring the case of another accused to the High Court where he disagreed with the verdict on any of the charges framed against him. The amendment was made to remove the necessity of referring the whole case, including the case of an accused concerning whom the Judge was in agreement with the verdict on all the charges framed against him. The amendment would have been unnecessary if S. 307 (1) contemplated a reference of only a part of the case and not the whole of it.
The amendment of 1955 completely recast S. 282 of the Code. This amendment provided for the continuance of the trial with the reduced number of jurors, in the circumstances mentioned in the section, instead of the trial recommencing with a newly selected Jury. Consequently, in S. 307, sub-s. (1)A was introduced which directed that where the jurors were equally divided on all or any of the charges on which any accused person had been tried, the Judge must submit the case in respect of such accused to the High Court recording his opinion on such charge or charges and the grounds of his opinion. This direction, in our opinion, makes it clear that the whole case had to be submitted to the High Court. In our opinion, the amendments of 1923 and 1955 to S. 307 clearly indicate that Parliament itself thought that it was the whole case and not a part of it which was to be submitted to the High Court. Indeed, as already stated, S. 307, even before its amendment in 1955, when properly construed, leads to no other reasonable conclusion.
It is now necessary to consider the cases decided by some of the High Courts in India in this connection. The Patna High Court in Emperor vs. Hazari Lal, ILR 11 Pat 395 (A), expressed the opinion that having regard to the provisions of S. 307 a reference made thereunder must be of the whole case against the accused and not a part of it. If only a part of it is referred then the reference made under S. 307 is incompetent. That High Court reaffirmed the view taken in Hazari Lal’s case (A), in the case of Ramjanam Tewari vs. Emperor, ILR 14 Pat 717. This was the view also taken by the three Judges of the Calcutta High Court in the case of Emperor vs. Bisoon Chandra, 37 Cal WN 1180, two of whom, however, in rejecting the reference directed that the accused be acquitted. The third Judge, Mr. Justice McNair, however, confined himself to the observation that the Sessions Judge had disabled himself from making a valid reference under S. 307 of the Code by accepting the verdict of the Jury against the accused on some of the charges. In our opinion, the view taken by the Patna High Court was correct and in accordance with the provisions of S. 307. [AIR 1958 SC 194 : (1958) SCR 962 : (1958) CriLJ SC 303]
Again merely disagreeing with the verdict of the Jury is, by itself, not sufficient for referring the case to the High Court, unless he further finds that it is necessary for the ends of justice to do so. 1959 Cr LJ 1413: AIR 1959 Ass 238. Where in a reference under Section 307, the High Court after considering the entire evidence on the record comes to the conclusion that no reasonable body of men could have returned a verdict of guilty against any of the accused persons the reference is justified and the verdict must be set aside. 1960 Cr LJ 338: AIR 1960 Cal 183. The powers of the High Court are larger when a case is submitted by the Sessions Judge when he differs from the Jury and when the High Court deals with the matter in an appeal. When an appeal is heard by the High Court, it means that the verdict of the Jury has not been perverse, and the matter to be heard is a question of law but when a reference is made, the High Court can exercise any of the procedural powers appropriate to the occasion such as, issuing of notice, calling for records, remanding the case for re-trial, etc. AIR 1962 SC 605.