1. This is an appeal by the Local Government under the provisions of 8. 417, Criminal P.C. against an order of acquittal passed ay the First Additional Sessions Judge of Mymensingh in a case in which the two accused before us were charged before him and a jury under Section 395, I.P.C. The case is in many ways an extraordinary one, and it is desirable, therefore, to set out the facts briefly.
2. The two accused, Jahey Sheikh and Katua alias Jabed Ali, were charged with having committed an offence punishable under Section 395, I.P.C. They were duly committed to take their trial in the Sessions Court. The first Additional Sessions Judge of Mymensingh, Mr. N.V.H. Symons, tried the case with the aid of a jury. On the 9th March 1927 the trial was concluded and the jury were directed to retire and bring in their verdict. What happened thereafter is set out below as appears from the record:
Q. As regards both accused are you unanimous.
Q. What is your verdict?
A. Guilty under Section 395, I.P.C.
Q. Did you find that Ismat mentioned Katua's name immediately after the occurrence?
A. We thought it unlikely that the family could have made up the story so soon, and we did not think that the explanations of the accused about enmity were sufficient to enable Abdul to bring a false case.
3. The jury is then charged' again on the matter concerned in the last question. They retired at 3-53 p. m. and returned at 4-30 p.m.
Q. Do you find that Ismat mentioned Katua's name immediately after the occurrence?
A. No, we find that he did not.
Q. Does the jury wish to make any statement about their verdict of guilty?
A. We did not follow the meaning of 'fair complexion,' nor did we understand fully the importance of the passage in the ejahar, and the evidence of the independent witnesses. We now see that Katua is a dark man, and that Ismat could not have mentioned his name as he has said that he only knew him by sight. We wish to amend our verdict and return a unanimous verdict of not guilty.
4. As will be seen from the above the jury at first brought in a unanimous verdict of guilty against the accused under Section 395, I.P.C. The learned Additional Sessions Judge apparently was of a contrary opinion and he proceeded to charge the jury again. After the second charge was finished the jury retired again and returned at 4-30 p.m. What the learned Additional Sessions Judge stated to the jury in the course of the second charge does not appear from the record. But it appears from the record that he had previously anticipated the jury's bringing in, in the first instance, a verdict of guilty against the accused and that he had intended to refer the case to this Court for final orders. With that view he had written out a letter of reference and signed the same, bat it appears that having regard to the events which subsequently happened he placed the letter of reference on the record though he had not dispatched the same to this Court. The procedure adopted by the learned Additional Sessions Judge is one which is entirely opposed to the procedure laid down in the Criminal Procedure Code and is one for which there is no warrant anywhere in the law obtaining in British India.
5. In this view of the matter we cannot allow the verdict of the jury to remain. We must set aside the verdict of the jury and set aside the order of acquittal, dated 9th March 1927, and direct that the matter be sent back in order that the accused may be retried in accordance with law before the Sessions Judge of Mymensingh.