1. The appellants were tried upon charges under Sections 366 and 368 of the Indian Penal Cade by Sri S. N. Bagchi, Assistant Sessions Judge, Alipore, sitting with a jury. The jury at first returned a verdict of not guilty under Section 366 of the Indian Penal Code against Mani alias Manmatha alias Monoranjan Sardar, The jury also returned a verdict of not guilty under Section 368 against the appellants' co-accused Hiramani Dasi and Hari Dasi. The women accused were accordingly acquitted. The learned Judge was of the view that the verdict of not guilty under Section 366 of the Indian Penal Code returned by the jury as against Mani was not a proper verdict. Accordingly, he directed the jury to retire once more and reconsider theirverdict, For this purpose he administered a further summing-up to the jury which took about ten minutes. No record of this supplementary sum-ing-up was, however, made. When the jury returned a second time, they brought in a verdict of guilty under Section 366 of the Indian Penal Code against appellant Mani. This verdict the learned Judge accepted and he thereupon convicted the said appellant of the relative offence and sentenced him to suffer rigorous imprisonment for seven years.
2. It appears that although the charge to the jury was concluded and their verdict taken on the 8th June, 1956, the learned Judge did not pass sentence until the 10th July, 1956. We cannot understand why there should have been this inordinate delay. It was clearly the duty of the learned Judge to deal with the whole matter immediately after the jury had returned their verdict. The summing-up, which was of inordinate length, was not signed until the 28th July, 1956. To add to this, there was the very serious defect of not causing a record to be made of the supplementary summing up. In King v. Matleb Sk., 53 Cal WN 716 : (AIR 1949 Cal 579), a Division Bench of this Court held that in the absence of a record of a supplementary charge to the jury, this Court was entitled, and indeed it was its duty, to order a retrial. The defect concerned is so vital that we must set aside the verdicts of the jury as well as the convictions, and sentences which followed and order that all the appellants, including Mani, he retried upon the same charges by some other learned Judge sitting with a fresh jury.
3. Pending retrial, those appellants who are on bail will continue on the same bail and those who are not on bail will be released on bail to the satisfaction of the learned District Magistrate of 24-Parganas.
Debabrata Mookerjee, J.
4. I agree.
5. BY THE COURT (July 8, 1957). It now transpires that the learned Judge passed the sentence on 8-6-1956, and that there was, therefore, no delay. The mistake is referable to a wrong date in the paper book.