Holmwood and Sharfuddin, JJ.
1. This was a Rule calling upon the District Magistrate of Hooghly to show cause why further proceedings for conspiracy to commit murder against the petitioner, Manindra Chandra Ghose alias Binoo, should not be stayed on the ground that the two alleged co-conspirators having been acquitted there is no possibility of a conviction being obtained against the alleged conspirator who now stands alone, and upon the other grounds mentioned in the petition.
2. As regards the specific ground which is first mentioned in this Rule, it has not been argued before us, and it is clear that there is no charge of conspiracy at present against the petitioner, and the fact that there was an acquittal of the other two would not conclude the matter, inasmuch as there are two persons named as conspirators who have not yet been tried, and it is stated that others unknown also conspired, so that the ground that the petitioner is the only alleged conspirator remaining, can no longer be sustained.
3. We, therefore, turn to the grounds which were actually taken by the learned Counsel in the petition. The first was that the warrant against the petitioner having been recalled and there being no fresh materials or enquiry in the matter, the issue of warrant again against the petitioner was illegal, that is to say, that the proceedings are without jurisdiction. The answer to that is that the proceedings are not, as the petitioner appears to have imagined from paragraph 14 of the petition, re-instituted by the complainant, Man Mohan Ghose, but they were re-instituted by the officer in charge of the Hooghly police station under the direction of the District Superintendent of Police, who could not appear himself, but who had been instructed by the District Magistrate, on the advice of the law-officers of the Crown, that this case can go on the evidence. We do not desire to express any opinion upon this evidence, whether it is sufficient or not, but it certainly gave jurisdiction to the District Magistrate to take cognizance of the case if on taking legal advice he was of opinion that the evidence brought the accused within the purview of the law. Of the jurisdiction of the District Magistrate to take these proceedings, there can be no doubt, and it is the District Magistrate and not the complainant who has re-instituted these proceedings.
4. Then as regards the second ground, that the case for the prosecution in the previous trial was one of conspiracy between two youths who have been acquitted and the present accused, and that charge having failed, the present proceeding ought not to be allowed to go on. This has been argued by the learned Counsel from the point of view that the opinion of the jury in this country necessarily covers the whole of the indictment and has the same sacro-sanct character that such a verdict has in England. This doctrine has very recently been dealt with by Woodroffe and Beachcroft JJ. in Ramesh Chandra Banerjee v. Emperor (1913) I.L.R. 41 Calc. 350 and we may express our concurrence with the view expressed by Mr. Justice Beachcroft where he says: 'The repugnancy in the verdict of a jury in India is not in itself sufficient to justify the quashing of a conviction and that the technicalities which are borrowed from the English law and founded on ideas as to the sacred character of a verdict by a jury whose findings of fact are unknown, cannot be imported so as to give such a character which by the express provisions of law does not attach to jury verdicts in this country.' However that may be, the jury certainly did not and could not have formed any opinion, much less expressed it, as regards the case of the present petitioner who was not before them. But it is argued that the evidence is precisely the same against him as against the others. The learned Deputy Legal Remembrancer appearing for the Crown has shown us that this is not so. There is distinct evidence against the present petitioner, and the fact that the wounded man did not satisfactorily identify the two youths does not, in our opinion, in any way affect the identification which he may or may not have made of the present petitioner, because that was a matter which was not in any way before the jury and has never been adjudicated upon. It may be, as the learned Deputy Legal Remembramcer has told us that he had better knowledge of the present accused or he had better opportunities of seeing him. We have not purposely gone into the evidence because we do not wish in any way to prejudge the case. But it is clear that the evidence as regards identification of one person may be quite different to that as regards the identification of two others, even although it proceeds from the mouth of the same witness; and the learned Judge clearly stated that the identification of these two youths showing that the crime was committed by these two youths appeared to him to be weak, and on that ground he agreed with the jury in acquitting the accused. In this country the opinion of the Judge is to be weighed by this Court in exactly the same balance as the opinion of the jury. Where the Judge has expressed a clear opinion and the jury has expressed none, it would be in our opinion an unwarrantable thing for us to interfere with the ordinary course of justice in a case of this nature.
5. Then the further ground that is taken is that there being no suggestion at any stage of the two previous trials that any particular accused was responsible for the offence, the present proceeding ought not to be allowed to go on. This particular ground has not been urged before us by the learned Counsel, but it is necessary to glance at it, for this reason that at present the proceedings against the petitioner to which he has to answer come under Section 307 read with Section 34 of the Indian Penal Code, and Section 34 does not involve abetment, and, therefore, does not imply any conspiracy and does not require proof that any particular accused was responsible for the commission of the actual offence.
6. The fourth ground stated in the petition refers to the unanimous verdict of the jury of not guilty on all charges against the two youths who were formerly on their trial, and the judge having held that the evidence of identification was weak and there being no suggestion that any new or further evidence would be available, the proceedings are fit to be quashed. We have already dealt with this above and there is no need to say anything further.
7. The last ground is as to the nature of the evidence which we decline now to go into, and also upon the opinion of the Civil Surgeon which is referred to in the petition, and which we may at once say relieves the petitioner of any necessity of showing that he had not certain marks of injury on his person which might have been caused by the explosion of a gun. That portion of the evidence, if it was ever seriously put forward, seems to have entirely broken down, and no doubt will not again be revived; but this is a very minor point and has nothing to do with the other considerations which we have already set out.
8. Having given this case our most careful consideration, we are of opinion that it would not be in any way justifiable to interfere with the ordinary course of justice at the present stage of the proceeding. We, therefore direct that this Rule be discharged and the proceedings do continue from the point they had already reached. The petitioner will remain on the same bail.