1. The accused in this case was put up for his trial under Section 302. of the Indian Penal Code, 1860, for the offence of murder by intentionally causing the death of one Balwantsing. On 'account of the nature of the medical evidence as to the injuries on the deceased, I directed the jury that if they were of the opinion that the accused inflicted the injuries, it would be open to them to return a verdict of murder or of the lesser offences of culpable homicide not amounting to murder or even grievous hurt with or without a dangerous weapon. In fact, I directed them that the injuries would not, on the medical evidence, be regarded as sufficient in the ordinary course of nature to cause death as the prosecution counsel also conceded, but may be regarded such as to reduce the offence to culpable homicide not amounting to murder or grievous hurt, and in that case I specifically asked the jury to return a verdict on any of these two lesser offences. The jury brought in unanimous verdicts of not guilty as to the offences of murder and culpable homicide not amounting to murder and a divided verdict of not guilty by six against three as to the offence of grievous hurt. I disagreed with that majority verdict of not guilty and wag of the opinion that the jury should be discharged under Section 305 (3) of the Criminal Procedure Code, 1-898, and that under Section 308 the accused should be tried by another jury for the offence of grievous hurt. It is, however, contended on behalf of the accused that I have no power to direct the trial for that offence before another jury as the accused has to1 be acquitted on the unanimous verdict of the jury on the only offence with which he was charged, viz. murder, and that acquittal bars another trial for any other offence on the same facts under Section 403(1) of the Criminal Procedure Code. Mr. Baptista for the accused relies for that argument on a decision of Mirza J. in Emperor v. Abia Isak I.L.R. (1931) 55 Bom. 520 That decision, being on similar facts, no doubt supports his contention. The two accused there were charged, along with the offences of robbery with hurt and abetment thereof, with the offences of murder and abetment of murder respectively. Kemp J., who originally tried the accused, had charged the jury to return a verdict of culpable homicide not amounting to murder and abetment thereof if they were .satisfied that the evidence established those lesser offences. The jury returned unanimous verdicts of not guilty of murder in favour of accused No. 1 and of abetment thereof in favour of accused No. 2, but were divided by five against four in respect of the lesser offences of culpable homicide not amounting to murder and abetment thereof as well as the other offences of robbery with hurt and abetment thereof. The learned Judge acquitted the accused of the offences of murder and abetment thereof, but discharged the jury as to the other offences for which they had returned a divided verdict.
2. The case then came for trial before Mirza J. and another jury, where the accused were charged with the offences of culpable homicide not amounting to murder and abetment thereof respectively as also with the other separate offences. A preliminary objection was taken for the accused that the trial for the offences of culpable homicide not amounting to murder and abetment thereof was not competent under Section 403(1) of the Criminal Procedure Code in view of the acquittal for the offences of murder and abetment thereof. Mirza J. upheld that objection on the ground that there being no specific charges of the lesser offences, the jury were not bound to return a verdict in respect of them unless they were of opinion that they were guilty of those offences, and that therefore the accused cannot be tried for those offences by virtue of the bar created under Section 403. With great respect to the learned Judge, I fail to see how that result follows. The underlying assumptions are, firstly, that the jury is bound to return a verdict for the lesser offence only if that offence is specifically charged, and, secondly, that such a charge might have been made under Section 236. In my opinion, these assumptions are unwarranted and against the provisions of Sections 238 and 299 of the Criminal Procedure Code, neither of which has been considered by the learned Judge. Under Section 238(2), when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it. It has been held that a charge of murder includes the minor charges under Section 304 or under Section 324 or 326 of the Indian Penal Code (Queen-Empress v. Devji Govindji I.L.R. (1895) 20 Bom. 215 and Janak Singh v. Emperor : AIR1942Pat446 , Then Section 299 of the Criminal Procedure Code provides that it is the duty of the jury, among other things, to decide which view of the facts is true and then to return the verdict which under such view ought, according to the direction of the Judge, to be returned. Where, therefore, the Judge asks the jury, in a charge of murder, to return a verdict, if they think fit, of a lesser offence with which the accused is not specifically charged but which is really included in the charge, the jury is, in my opinion, bound to return a verdict about a lesser offence if they think that it is not a case of murder. Such a direction by the Judge to the jury is not merely permissible but is obligatory under illus. (a) to Section 299 if the evidence discloses facts which may reduce the gravity of the charged offence. The charge) is framed before the evidence is led, and even during the course of the evidence, if the facts proved disclose a minor offence, the charge need not be altered or added. Section 238(2) k expressly enacted todo away with the necessity of including in the charge all minor offences which the evidence mayultimately establish, and when the Judge gives direction to the jury to consider whether a minor offence is established, they are bound, as stated in the said illustration, to return the verdict according to the direction whether they do or do not agree with it. Moreover, Section 403(i) does not apply to a charge but to an offence. What it says is that a person convicted or acquitted of an offence shall not be tried again for the same offence or any other offence on the same facts for which a different charge might have been made. If, therefore, the accused is acquitted of the offence of murder, he cannot be tried again for the same offence, but so long as he is not acquitted by the Judge of the offence of culpable homicide not amounting to murder or grievous hurt on the same charge, there is nothing to prevent him from being tried before another jury for any of those minor offences if that is permissible by virtue of the provisions of Sections 305 and 308. That, brings me to another reason why a. 403 does not apply to cases governed by the) latter two sections. When the Judge disagrees with a divided verdict and discharges the jury with the result that the accused is tried by another jury, he is not tried again within the meaning of that expression in Section 403, but he is tried in the course of the same trial before another jury. The accused has to be in custody or on bail till his case is heard by another jury and that means that his trial has not ended. Section 403(2), on the other hand, would apply to ' a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence.' That means that the former trial is complete. In cases, falling under Sections 305 and 308, the accused is neither convicted nor acquitted of the offence when the jury is discharged. For all these reasons, I am of the opinion that-s. 403 does not apply to cases falling under those two sections. That is also the view taken by Stephen J. in Emperor v. Nirmal Kanta Roy I.L.R. (1914) 41 Cal. 1072 where he says that when an accused is tried before a different jury under Section 308, he is not being 'tried again' within the meaning of Section 403, but the Court continues the trial before another jury. Incidentally T may mention here that there is an obiter dictum in that case which at first sight might go against the view I have taken. In that case there was a charge under Sections 302 as well as 304, i.e. murder and culpable homicide not amounting to murder, for causing the death of the same person and the jury returned a unanimous verdict of acquittal under Section 302 and a divided verdict of five to four under Section 304. It was held that there was no bar under Section 403 for the retrial of the accused for the offence under Section 304 because that offence was included in the charge and Section 403 would not apply where a different charge was made at the trial and the jury disagreed with it. In giving his reasons the learned Judge incidentally observed (p. 1088):
If he had been charged with murder alone, no doubt a verdict of ' not guilty' would protect him from another trial for culpable homicide ; and should he be acquitted of culpable homicide he will be protected from trial for any offence involving hurt: but where a charge is made, the case falls outside the provisions of the law dealing with cases where it might have been made.
3. This observation would be correct if it is meant to apply to a case where in absence of a direction by the Judge to give a verdict for a minor offence if they thought fit, the jury simply gave a verdict of ' not guilty' of murder. In that case, the accused cannot be tried again for a lesser offence after the trial for murder was complete. But it cannot apply where a divided verdict has been given on the minor offence and the Judge disagrees with it. In .such a case, according to the learned Judge's own reasoning in another part of his judgment, the trial is not complete and Section 403 (1) would not apply.
4. I may observe here that the decision in Emperor v. Abla Isak has been recently followed by a single! Judge of the Madras High Court in In re Arumugham A.I.R.  Mad. 737. But the learned Judge there did not mean to lay down any principle but expressly confined his decision to the particular facts of that case, which according to him brought trje case under Section 236 and not Section 238 of the Criminal Procedure Code. In my opinion even the facts of that case brought it under Section 238 and not Section 236, but even apart from that, he has not discussed the legal position as to the relation between Sections 305 and 308 on the one hand and Section 403 on the other. I do not regard that decision as an authority on any point.
5. If the decision in Emperor v. Abla Isak is correct, it must, I think, come to this that where after the unanimous verdict of ' not guilty' of murder, the jury returns a majority verdict for a lesser offence, on the direction of the Judge, there is no question of his agreement or disagreement with that verdict because in any case it must prevail. Even if he disagrees with it, the case cannot go before another jury. Then again, in such a case, if the majority verdict for the lesser offence is ' guilty' and if the Judge agrees with it, that must be carried out even though the accused was not specifically charged with the lesser offence, but if the majority verdict is 'not guilty' and the Judge disagrees with it, nothing further can be done because the accused was not specifically charged with the lesser offence. I do not think the Legislature contemplated such an absurd result.
6. For the reasons stated above, the decision of Mirza J. in Emperor v. Abla Isak is in my judgment, not correct, but Mr. Baptista has contended that I am bound by that decision as it is of a Judge with co-ordinate jurisdiction. He relies on the observations of Sir Amberson Marten C. J. in Tyabji Dayabhai & Co. v. Jatha Devji & Co. I.L.R. (1927) 51 Bom. 855 that the proper course for a single Judge is to follow the decision of another single Judge of the same High Court without expressing, if he liked, any opinion of his own and leaving it to the parties to appeal if they thought that that decision was wrong. That statement is to a certain extent supported by the observation of Sir Lawrence Jenkins C. J. in Haftzaboo v. Mahomed Cassum I.L.R. (1906) 31 Bom. 105. In a recent decision in Punathchand Velraj v. Bombay Cloth Market Company, Limited (1942) 45 Bom. L.R. 240 Sir John Beaumont C. J. has observed that a Judge ought generally to follow a decision of a Court of co-ordinate jurisdiction as to the construction of an Act of the Legislature but Judges are not entitled to legislate or to bind their successors to a construction of an Act which the language plainly does not justify. On the other hand, the Calcutta and Madras High Courts have held that a single Judge of a High Court is not bound on a question of law by the decision of another single Judge of that Court : see Virjiban Dass Moolji v. Biseswm Lal Hargovind I.L.R. (1920) Cal. 69 and Seshamma v. Narasimharao  Mad. 454. The English law as summarised in Halsbury's Laws of England ( Hailsham Edftion, Vol. XIX, p. 256) is that ordinarily a single Judge should follow the decision of another single Judge of the same High Court leaving it to the Court of Appeal to say whether or not that decision is wrong. I think, therefore, that I ought to' follow the procedure which has been approved of by our Court and which is also in accordance with the English practice. Moreover, Section 411 A, which is recently added in the Criminal Procedure Code, by Act XXVI of 1943, now provides for an appeal by the Provincial Government against an order of acquittal passed by the High Court in its original criminal jurisdiction.
7. As a result, on the unanimous verdict of the jury, the accused is entitled to be acquitted of the offence! of murder with which he was charged and that order of acquittal must be deemed to include his acquittal for the offence of grievous hurt, in spite of my disagreement with the majority verdict of ' not guilty' for that offence. I accordingly direct that the accused be acquitted and discharged, leaving it to the Provincial Government, if so advised, to prefer an appeal against this order.