1. The question referred to the Full Bench is, 'Whether it is open to a Court of Session trying a case with the aid of a jury, after recording the opinion of the jury, which is ex facie not ambiguous, to re-charge the jury, because the judge feels that the verdict is the result of confusion in the minds of the jury, and to obtain the verdict of the jury after so re-charging the jury.' In order to answer this question, it is necessary to consider the provision contained in the Code relating to trial of case tried by jury. Section 297, Criminal Procedure Code, provides that in cases tried by jury, when the case for the defence and the prosecutor's reply are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided. Section 298 Criminal Procedure Coder lays down that in such cases it is the duty of the Judge to decide all question of law. Section 299 states that it is the duty of the jury to decide which view of the facts is true and also all questions. Which according to law, are to be deemed questions of fact.
2. Under Sections 298 and 299, Criminal Procedure Code there is, therefore, a division of functions between the Judge and the Jury. All questions of fact are to be decided by the Jury, while questions of law must be decide by teh Judge himself. Section 300 states that after the Judge has finished his charge, the jury may retire to consider their verdict. Section 301 states that when the jury have considered their verdict, the foreman shall inform the Judge what is their verdict, or what is the verdict of a majority or that the jurors are equally divided in opinion. Section 302, Criminal Procedure Code, provides that if the Jury are not unanimous, the Judge may require them to retire for further consideration. Section 303, Criminal Procedure Code, empowers the judge to ask such questions to the jury as are necessary to ascertain what their verdict is. This section enables the Judge to ask the jury such questions as are necessary to ascertain what the jury really meant by their verdict. It can, therefore, be used only in cases in which the verdict of the jury is ambiguous. When, however, the verdict is free from ambiguity, no questions can be put under Section 303, Criminal Procedure Code. Section 304 provides that when by accident or mistake a wrong verdict is delivered, the jury may before of immediately after if is recorded amend the verdict, and it shall stand as ultimately amended. Section 306 provides that when the Judge does not think it necessary to express disagreement with the verdict of the jurors or of a majority of the jurors, he shall give judgment accordingly. Section 307, Criminal Procedure Code, states that if in any such case Judge disagrees with the verdict of the jurors or of a majority of the jurors and is clearly of the opinion that it is necessary for the ends of justice to submit the case to the High Court, he shall submit the case accordingly.
3. It will be seen from these provision that the Code does not contain any specific provision empowering the Judge to re-charge the jury. Teh learned Government Pleader has urged that in the absence of any provision to the contrary in the Code, it is open to the Judge to re-charge the jury, whenever he finds it necessary to do so in the interest of justice. This argument cannot be accepted, because the Code lays down in detail the procedure, which is to be followed in trial of sessions cases tried by Jury. It is, therefore, not open to the Judge to follow any procedure other than that laid down in the Code.
4. The question, which we have to decide in this case is whether a Judge can re-charge the jury, when he finds that the verdict is the result of confusion in the minds of the jury. As I have stated, there is no express provision in the Code empowering a Judge to re-charge the jury. Section 304, Criminal Procedure Code, however, provides that when by accident or mistake a wrong verdict is delivered, the jury may before or immediately after it is recorded, amend the verdict, and it shall stand as ultimately amended. This Section, therefore, enables a wrong verdict to be corrected, when it is due to an accident or a mistake. The verdict would be wrong due to an accident, when for instance, the foreman while informing the Judge of the jury's verdict, accidentally makes a slip and mentions a wrong section of law. The other case, in which a wrong verdict can be corrected is, when it is due to a mistake. The mistake may be discovered either by the jury itself or by the Judge. This section does not say that it can be used only when the mistake is discovered by the jury itself. In the absence of any such provision in the section, it will be reasonable to hold that this Section can be used even when the mistake is discovered by the Judge. Consequently, under this section the Judge can point out the mistake to the jury and if he has the power to point out the mistake to the jury, it is necessarily implied that he can also give reasons on account of which he thinks that there is a mistake. The power of the Judge to point out the mistake and give reasons is, therefore, in our opinion, implicit in the provision of Section 304 Criminal Procedure Code. The mistake may be a mistake of fact or a mistake of law. So far as questions of fact are concerned, they are entirely within the province of the jury, for under Section 299 Criminal Procedure Code, they have to decide all questions of fact. Unless the Judge makes a reference under Section 307, Criminal Procedure Code, to the High Court, he is bound by the view taken by the jury on questions of fact. The various Sections laying down the procedure for trial of sessions cases by jury must be read together. Section 304, Criminal Procedure Code, must, therefore, by read along with Sections 298 and 299 Criminal Procedure Code. The finding of the jury on questions of fact being binding upon the Judge, it will necessarily follow that it will not be open to the Judge to tell the jury that their finding is incorrect due to a mistake of fact. Consequently, if the wrong verdict of the jury is due to a mistake of fact, the Judge cannot point out such a mistake to the jury under Section 304, Criminal Procedure Code. On the other hand, if it is mistake of law, he is perfectly competent to draw the attention of the jury to it, for, under Section 298, Criminal Procedure Code, all questions of law have to be decided by him. In our opinion, therefore, if the Judge finds that the jury has delivered a verdict, which is wrong due to a mistake of law, it would be competent for him to point that mistake to the jury and also to give his reasons therefor. To that extent alone he can re-charge the jury.
5. I will now refer to various cases, which have been cited in the course of arguments. Mr. Mirchandani, who appears on behalf of the accused, has relied on Emperor v. Kondiba, 6 Bom LR 361, in support of his argument that S. 304, Criminal Procedure Code, contemplates only those cases, in which there is a mistake in the actual delivery of the verdict, i.e., where the verdict is different from what the jury actually intended to deliver. In this case the accused was tried before the Sessions Court on charges under Sections 232 and 235, Indian Penal Code. The jury returned a unanimous verdict of guilty under Section 235, Indian Penal Code and (SIC) unanimous verdict of not guilty under Section 232, Indian Penal Code. The learned Judge questioned the jury as to the reasons for holding that the accused were not guilty under Section 232, Indian Penal Code. The jury answered that the accused were not actually caught in the act of coining. The learned Judge then explained to them the law under Section 232, Indian Penal Code and asked them to reconsider their verdict. Accordingly, the jury reconsidered the matter and returned a unanimous verdict that the accused were also guilty under Section 232, Indian Penal Code. It was held that Section 303, Criminal Procedure Code, limits the power of the Judge to question the jury only to cases in which it is necessary to ascertain what the verdict of the jury is, i.e., where the verdict delict delivered is in ambiguous terms or with uncertain sound so that their meaning is not clear. As there was no ambiguity in the unanimous verdict of not guilty under Section 232, Indian Penal Code, it was not necessary to put any question under Section 302, Criminal Procedure Code, in order to ascertain what the jury's verdict was. Consequently, the only course left of the Judge, if he disagreed with the verdict of the jury, was to refer the case under Section 307, Criminal Procedure Code, to the High Court. In this view it was really not necessary in that case to consider the provision of Section 304, Criminal Procedure Code. The learned Judges, however, referred to this section and observed that this section contemplates cases where the verdict delivered is not in accordance with what was really intended by the jury. With respect it is difficult to see why the provisions of Section 304, Criminal Procedure Code, should be limited in this manner. The section provides for the correction of a wrong verdict, when such wrong verdict is due to an accident or a mistake. There does not appear to be any sufficient reason why the words 'accident' or 'mistake' must be confined only to cases in which the verdict actually delivered is different from what the jury intended to give.
6. A different view was expressed in Queen-Empress v. Madhavrao, ILR Bom 735. In that case the verdict of the jury was that the accused, who was tried for rape, did the act with consent. The Sessions Judge then asked the jurors whether they found the accused guilty or not guilty. The jury again retired and brought in a verdict of guilty. Accordingly, the Sessions Judge convicted the accused. The conviction was set aside on the ground that as there was no ambiguity in the verdict of the jury, the Sessions Judge was bound to record the verdict and apply the law thereto. It was also held that the second verdict could not be sustained, as there was nothing to show that the Sessions Judge gave the jury and fresh directions or explained to them that a finding that the woman had consented was tantamount to an acquittal. The learned Judges, therefore, appear to have been of the opinion that the Sessions Judge could give fresh directions to the jury. This case was followed in Empress v. Bharmia, 6 Bom LR 258. In that case the jury, by a majority of four to one, found the accused, who was charged with murder, guilty of voluntarily causing grievous hurt. The Sessions Judge thereupon put several questions to the jury. Thereafter the learned Judge, disagreeing with the verdict of the jury, referred the case to the High Court. It was held that questions put to a jury by the Sessions Judge demanding their reasons for acquitting the accused on the charge on which the jury had delivered a unanimous verdict without any uncertain sound, exceeded the limits of questioning which the law contemplates. It was further held that if the Jury were not unanimous, the proper course open to the Judge was to require them, under Section 302, Criminal Procedure Code to retire for further consideration. It was also observed that the Sessions Judge might, at the same time, have given further directions on matters of law. In these two cases, therefore, the view taken was that the Judge can give further directions to the jury, in case he finds that the jury has delivered a wrong verdict due to misunderstanding of law.
7. The Calcutta High Court has in a series of cases taken the view that it is open to the Sessions Judge to re-charge the jury on specific points, in the absence of anything in the Criminal Procedure Code, which prevents him from doing so. See Hamid Ali v. Emperor : AIR1930Cal320 ; Rafat Sheikh v. Emperor : AIR1933Cal640 and Sadek Mandal v. Emperor : AIR1934Cal173 ). These cases have been followed by the Patna High Court in Janak Singh v. Emperor, : AIR1942Pat446 . With respect it seems to us that the power of the Sessions Judge to charge the jury must be derived from the provisions of the Code, which lay down the procedure to be followed in trial of Sessions Cases and that unless these provisions expressly or impliedly confer a power upon the Sessions Judge to re-charge the jury, he cannot do so.
8. The other case, which has been cited in the course of argument, on which Mr. Mirchandani has relied, is In re Sundaram Ayyar, ILR Mad 256 : AIR 1931 Mad 775. In that case, the decision in 6 Bom L.R. 361 was followed and it was held that when a Sessions Judge thinks that the jury had, by committing an error of law, committed an error of judgment but not that they had delivered a verdict, which they did not intend to deliver, he cannot address another charge to the jury on the law and request them to reconsider their verdict in the light of the same, but should, if he discharged with the verdict of the jury, submit the case to the High Court under Section 307 Criminal Procedure Code. It was observed in the same case that Section 304 Criminal Procedure Code has no application where there is no accident or mistake in the delivery of the verdict and the mistake lies in the misunderstanding of the law by the jury. For the reasons, which I have already given, it seems to us, however, that where a verdict of the jury obviously appears to be due to a misunderstanding or mistake of law, the Sessions Judge can, under Section 304, Criminal Procedure Code, draw the attention of the jury to that mistake.
9. Our reply to the question, which was referred to the full bench, is that if the Sessions Judge finds that the verdict of the Jury is wrong due to their misunderstanding or making a mistake on a question of law, he is competent, under Section 304, Criminal Procedure Code, to invite the attention of the Jury to that mistake and to give his reasons therefor. To that extent alone he can re-charge or give further directions to the jury.
10. Answer accordingly.