1. This is a criminal reference to us from the Additional Sessions Judge of Cawnpore purporting to be made under Section 307, Criminal P.C. Two men were tried before him, each upon two charges, one under Section 435, I.P.C., which relates to doing damage by fire and the other under Section 454, I.P.C., which relates to lurking house trespass and house breaking. By the practice in force in these provinces the charge under Section 435 was triable in the Sessions Court with the aid of assessors, while the charge under Section 454 was triable by jury. In this case the jury acted in a dual capacity as both assessors and jurors. As a result of the trial the jury, in its capacity as a jury, acquitted the two accused upon the charge under Section 454 and, in their capacity as assessors expressed the opinion that they were not guilty of the charge under Section 435 either. The learned Judge, whose own opinion very evidently differed from that of the jury, thereupon without recording any judgment of acquittal or conviction on the charge under Section 435 launched this reference to us under Section 307 in respect of the acquittal by the jury, as a jury upon the charge under Section 454. Section 307 is part of a fasciculus of Sections dealing with trial by jury and by Sub-section (1) it sets out that
if in any case the Judge disagrees with the verdict of the jurors...and is clearly of opinion that it is necessary for the ends of justice to submit the case...to the High Court, he shall submit the case accordingly, recording the grounds of his opinion....
2. By Sub-section (2) it is provided:
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. Now the present case is somewhat anomalous by reason of the division of function of the jury and the learned Sessions Judge no doubt read that sub-section as meaning that he was not to record a judgment of acquittal or conviction upon any charge, whether it was triable by jury or triable by him with the assistance of assessors. And, accordingly, he referred the case to us without first acquitting or convicting the accused persons upon the charges under Section 435. We think that view of the matter was technically wrong. The Section, as we have pointed out, is part of a group of Sections dealing with trials by jury and when Sub-section (2) refers to acquittal or conviction on 'any of the charges on which such accused has been tried,' it means, we think, any of the charges on which the accused has been tried by jury. It does not include those charges which were not triable by the jury at all, but were triable by the Judge with the aid of the assessors. We find that the same view of the construction of Sub-section (2) of Section 307 was taken by the Madras High Court in In re Pachaimuthu (1932) 19 AIR Mad 512. An identical view has been expressed in the Bombay High Court in Emperor v. Chanbasappa Baslingappa (1932) 19 AIR Bom 61 and in the Patna High Court See AIR 1934 Pat 424 also the learned Chief Justice and another Judge expressed the same opinion. In this Court, too, two Judges in a very recent case (Ref. No. 752 of 1939) came to the same conclusion as to the proper construction of the subsection.
4. That being, in our judgment, the meaning of the Section, we think that the learned Additional Sessions Judge was technically wrong in making this reference to us before he had himself recorded judgment of acquittal or of conviction in respect of the charge under Section 435. We think that the proper thing therefore for us to do is now to stand over the present reference in this Court and to refer back to the Sessions Judge of Cawnpore the whole of the proceedings in order that a judgment of acquittal or of conviction as the case may be, may be recorded upon the other charge in accordance with the provisions of Section 307, Criminal P.C. When that has been done, it will be possible for the proceedings to be returned to this Court and we shall then be in a position to deal with the present reference. It will be convenient if steps are taken by the Registrar to ask the Sessions Court of Cawnpore to inform him when the other charges have been dealt with, in order that this reference may be restored to our list as soon as it is ready.