N.K. Sen, J.
1. The petitioners in this case were tried by Shri P.C. Roy Choudhury, Sessions Judge of Birbhum with the aid of a jury. There were two charges against each of the opposite parties, namely, one under Section 147 of the Indian Penal Code and the other under Section 304/149 of the Indian Penal Code. The learned Judge in agreement with the unanimous verdict of not guilty returned by the jury acquitted the opposite parties of both the charges.
2. Of the several grounds taken by the complainant petitioner in support of the Rule, Mr. Amal Kumar Basu, has referred to only one, namely, that the learned Judge did not take the verdict of the jury in respect of each of the charges against each individual accused and as such the order that followed was illegal. What happened appeared to be this. The jury was asked to state first if they were unanimous and then what their verdict was with regard to each of the accused persons. What the learned Judge did not ask the jury was : what their verdict was with respect to each of the charges of which the opposite parties were tried.
3. Section 303 of the Code of Criminal Procedure provides that the jury shall return a verdict on all the charges on which the accused is tried and the Judge may ask them such questions as are necessary to ascertain what their verdict is. There is no doubt that verdict is to be taken upon each charge separately. In this case the jury were asked in a lump about the verdict and as such the verdict is faulty. In a Special Bench case of the Bombay High Court presided over by Stone C.J., Sen and Dixit JJ., Yeshwant Tukaram Salunka v. Emperor, A.I.R. 1947 Bom 146 the verdict on all the charges was not taken separately, and it was held by their Lordships that Section 303(1) was infringed and as there was a clear infringement of the mandatory provision of Section 303 because the jury in each case had only returned a single verdict on two charges, such a verdict could not be sustained. In the case of In re:, Virumandithevan : AIR1928Mad207 , it was hold by the Madras High Court presided over by Devadass and Madhavan Nair JJ. that in a jury trial the charges upon which the accused were to be tried and upon which they were likely to be convicted should be specifically mentioned and the verdict of the jury should be taken on each such charge.
4. In my view, it was clearly the duty of the Judge to have first asked the jury their verdict with regard to each of the accused and with regard to each of the charges and a taking of a single verdict on each charge is mandatory.
5. Mr. Rebati Nath Sarkar, who has appeared on behalf of the accused opposite parties submits that on reading the verdict as returned it is quite clear that what the jurors intended to do was to acquit all the opposite parties of both the charges. It is not possible to accept this argument as the Court is to see what appears on the record and not what the jurors might have intended to say. Mr. Sarkar then pointed out that the recording of the verdict in the present case was a mere irregularity and this irregularity was curable under that curative provisions of the Code. He relies on Section 537 (a) which runs to the following effect:
'537. ........ no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account - (a) of any error, omission or irregularity complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code.'
It cannot be said, however, that the error in (sic-not?) taking down the verdict of the jury on eachof the charges under which they were tried was amere irregularity which could be cured under Section 537of the Code. It is an illegality which vitiates theentire trial.
6. It is true that much of the public time will be taken by ordering a retrial of the accused persons but this cannot be helped. The learned Judge, if he had been a little careful, could have avoided this unnecessary waste of time if he had simply asked one more question to the jury.
7. In the result the verdict of the jury and the order of acquittal passed by the learned Sessions Judge in agreement with the said verdict must be sot aside and the case remitted to the Sessions Judge to be retried with the aid of a jury on the charges framed against them.
8. The Rule is, accordingly, made absolute.