1. This is an application under Article 134(1)(c) of the Constitution of India for leave to appeal to the Supreme Court against a judgment and an order of a Division Bench of this Court by which a Reference under Section 307, Criminal P. C., was disposed of.
2. There were eight accused persons, all of whom were charged under Section 304, read with Section 149, Penal Code, and four of whom were further charged under Section 201 of the same Code. They were tried by the Additional Sessions Judge of the 24-Par-ganas with the aid of a jury. The jury returneda unanimous verdict of not guilty under Section 304,read with Section 149, Penal Code, in respect of all theaccused persons, but they found the same personsguilty under Section 147 and further found the chargeunder Section 201 proved against those who had beencharged under that section. The learned Judgewas not prepared to accept the verdict, in so faras it was a verdict of guilty and decided to makea Reference to this Court which he ultimately did.Nevertheless, in complete disregard of Sub-section (2) of Section 307, he acquitted the accused persons of thecarge under Section 304, read with Section 149, Penal Code.What he purported to refer, therefore, was not 'thecase', as contemplated by Section 307, but a portionof the case.
3. It appears that when the Reference came to be heard, the irregularity was noticed, but the learned Judges of the Division Bench merely observed that the trial Judge ought not to have acquitted the accused in respect of the charge under Section 304, read with Section 149 of the Code. At the same time, the learned Judges held that as the trial Judge had accepted the verdict under Section 304, read with Section 149, and acquitted the accused of the charge under those sections, they could not consider that charge again.
4. With reference to the remaining two charges, the learned Judges considered the evidence and thought that, generally speaking, it could not be said that the verdict of the jury was not one which a reasonable body of men could return. They pointed out what they considered to be the evidence in support of the charges of which the jury had convicted the accused, Nevertheless, the learned Judges thought that it would not be safe to accept the verdict in respect of three of the accused persons whose names had not been mentioned in the First Information Report. Two of those persons had been charged under both Section 147 and Section 201, while all the three had been charged under the former section. The learned Judges accepted the Reference in respect of those three accused persons and acquitted them. As regards the remaining five, they accepted the verdict of the jury and sentenced petitioners 1 and 2 to rigorous imprisonment for three years in respect of the charge under S, 201 and all the petitioners to rigorous imprisonment for one year each in respect of the charge under Section 147. In the case of the first two petitioners, the sentences were to run concurrently.
5. It is against that order that the five petitioners ask our leave to go to the Supreme Court on further appeal.
6. It appears to me that by reason of the manner in which the trial Judge made the Reference under Section 307, Criminal P. C,, a situation was created in which it was impossible for the learned Judges of this Court to move freely among the evidence of the case and to decide, as S, 307 required them to do, whether the verdict of the jury was one which a reasonable body of men could take on that evidence. It was contended on behalf of the petitioners that by recording an acquittal in respect of the charge under Section 304, read with Section 149, the learned trial Judge had closed and sealed the book of prosecution, so far as those charges were concerned and the result was that the learned Judges of this Court had been prevented from examining for themselves the evidence, so far as it bore upon those charges, with a view to testing the credibility of the prosecution witnesses. It was recalled that witnesses who had spoken to the charge under Section 304, read with Section 149, were the same as had spoken to the other charges. Since the jury had disbelieved the evidence of the prosecution witnesses, in so far as they had spoken of acts constituting an offence under Section 304 read with Section 149, it was necessary to see whether they had been right in believing the rest of the evidence of the same witnesses. That the learned Judges of this Court had been unable to do, because of the barrier erected by the learned trial Judge.
Mr. Sen who appeared for the State contended that the order of acquittal recorded by the learned trial Judge was an aboslute nullity and the Reference to this Court did not become incompetent because that order had been recorded. According to Mr. Sen, when a trial Judge records an order in agreement with the verdict of the jury on one or more of the charges and then refers the remainder of the case to this Court because he does not agree with the verdict in respect of that part, the Reference is not incompetent, but what is incompetent and invalid is the order passed in accordance with the verdict with which the trial Judge agrees. When such a Reference is received, this Court, according to Mr. Sen, can disregard the order of acquittal or conviction passed by the trial Judge and deal with the whole case as if the whole of it is open to them.
Had the learned Judges of this Court treated the order of acquittal in respect of the charge under Section 304, read with Section 149 as a nullity and considered for themselves the whole case without treating any part of it as closed to them, the argument of Mr. Sen might have supplied a good justification for such procedure. In fact, however, the learned Judges of this Court did not treat the order of acquittal as a nullity but on the other hand treated it as preventing them from considering the charge under Section 304, read with Section 149 at all. That being so, it is impossible to say, as Mr. Sen himself conceded in the end, that a grave irregularity did not occur.
7. I desire to add that I am doubtful whether the learned Judges of this Court could treat the order of acquittal as a nullity and interfere with it in the absence of an appeal by the State Government. If the irregularity to which I have referred occurred, then the Reference was not properly dealt with by this Court and that fact would be sufficient to justify a certificate of fitness for appeal. Mr. Dutt who appeared for the petitioners, however, took a number of other points, some being pure questions of law and some questions of mixed law and fact. As we are not a Court of appeal and as we have not heard Mr. Sen on those points fully, I shall merely indicate what those points are, as briefly as I may.
8. It was contended that in view of the language in which Section 201 was expressed, a person chargedwith the principal offence of murder could not at the same time be charged with the secretion of the body of the murdered man. In view of certain decisions of the Privy Council and of the Supreme Court, Mr. Dutt was unable to sustain that extreme contention in the end, but submitted that if a person, charged with both the principal offence of murder and the ancillary offence of the secretion of the dead body, was to be convicted of the latter charge upon his acquittal of the former, there must be some evidence that a murder had taken place, that is to say, an offence had been committed and that there was an offender, whoever he might be. It was said that in the cases where it had been held that it was not illegal to convict a person under Section 201 after his acquittal on a charge under S, 302, there was independent evidence and an independent finding as to the commission of an offence of murder.
According to Mr. Dutt, after the acquittal of the petitioners of the charge under Section 304, read with Section 149, there was no basis for such an independent finding in the present case and in fact there was no such finding. Mr. Sen's reply was that the evidence at least proved that the death of the deceased had not been normal and it also proved that although the petitioners might not have been guilty of the offence under Section 304, read with Section 149, they had still been concerned with rioting with the object of assaulting the deceased and that they had been found thereafter in possession of the man's dead body. In my view, the proposition of law formulated by Mr. Dutt and his further proposition that the facts of this case offer a foundation for it are both debatable matters and it appears to me that an opportunity should be given to the petitioners to have the question considered by the Supreme Court.
9. It was said further with regard to the conviction under Section 201, Penal Code, that the evidence did not justify the finding. The only evidence, it was said, was that the petitioners had been seen handling the dead body, but the mere handling of a dead body would not furnish evidence of many of the essential ingredients of Section 201, such as knowing or having reason to believe that an offence had been committed and having the intention of screening the offender. I am not much impressed by that point as a ground of appeal, as it relates to the assessment of the evidence, but I must add that we have not gone through the evidence in order to find out whether it is really of the nature stated by Mr. Dutt.
10. Certain other points were sought to be canvassed, one of which was that the approver having been charged with certain offences which were not among those mentioned in Section 337, Criminal P. C., he could not be tendered a pardon in respect of those offences and therefore, with respect to those offences, he remained an accused with the result that he could not be a competent witness. I was unable to agree with Mr. Dutt that Section 337 means what he read into it, but since we are not a Court which is called upon to decide the point, I shall content myself with merely mentioning it. Taking all things together, it seems to me that the caseis one which is fit for appeal to the Supreme Court. The leave asked for is therefore granted.
11. Let a certificate in the usual form be drawn up. Pending the disposal of the appeal by the Supreme Court, let the petitioners be released on bail to the satisfaction of the District Magistrate, 24-Parganas.
12. I agree.