Debabrata Mookerjee, J.
1. Six accused persons Bepin Behari Mondal, Brindaban Mondal, Chandra Kanta Mondal Niranjan Mondal, Nakul Mondal and Mantu Lal Mondal were tried by the Additional Sessions Judge Alipore with the aid of a Jury. Bepin was charged under Sections 148 and 302 of the Indian Penal Code Brindaban under Sections 148, 334 and 326; Chandra Kanta under Sections 148 and 324; Niranjan and Nakul under Section 148 and Mantu Lal Mondal under Sections 148 and 324 of the Indian Penal Code The Jury unanimously found Bepin guilty under Section 148 and by a majority of 6 to 3 guilty under Section 304 part II Brindaban was unanimously found guilty under Section 147 and by a majority of 7 to 2 guilty under Section 324. The Jury, however, unanimously found him not guilty under Section 326 of the Indian Penal Code. The remaining four accused Chandra Kanta, Niranjan Nakul and Mantu Lal were unanimously found not guilty in respect of each of the charges framed against them. The learned Judge agreed with the verdicts that Chandra Kanta, Niranjan, Nakul and Mantulal were not guilty of the charge of rioting and he consequently felt embarrassed by the verdict of guilty in respect of the charge of rioting brought against Bepin and Brindaban, it being the definite prosecution case that there were only six persons concerned in the commission of the riot; that was the charge and that was the evidence. In this state of the verdicts the learned Judge made this reference recommending that Chandra Kanta, Niranjan, Nakul and Mantu Lal might be acquitted of the charges brought against them; and in view of the acquittal of these four he felt compelled to recommend the acquittal of the remaining two accused Bepin and Brindaban in respect of the charge of rioting. He also recommended that Bepin might be convicted under Section 304 Part II and Brindaban under Section 324 of the Code in accordance with the Jury's verdict. There has thus been a reference of the whole case, namely, the case of each one of these six accused persons although it appears clear that the learned Judge agreed with the verdicts of the Jury or, at any rate, did not express his disagreement with their verdict in respect of any of the charges brought against Chandra Kanta, Niranjan Nakul and Mantu Lal. In the order recorded by the learned Judge himself it has been clearly stated that he agreed with the verdicts of the Jury in respect of the last named tour persons. There was thus no difference or disagreement between him and the opinion of the Jury as respects these four accused in regard to any of the charges preferred against them. When that was the position, it became the duty of the learned Judge to act in accordance with Section 306 of the Code of Criminal Procedure which provides that when In a case tried before the Court of Session the Judge does not think it necessary to express disagreement with the verdict of the jurors or of a majority of the jurors, he shall give judgment accordingly. Sub-section (2) of the section requires the learned Judge to record a judgment either of acquittal or of conviction as the case may be. Instead of proceeding in accordance with the provision contained in Section 306, the learned Judge referred the case of all the six accused to this Court. He was not required to do that. It is true that in the case of Sashi Mohan Debnath v. The State of West Bengal. : 1958CriLJ303 , it has been held by the Supreme Court that in view of the provisions of Section 307 of the Code of Criminal Procedure, a reference made thereunder must be of the whole case and not a part of it. A careful perusal of the judgment will show that what their Lordships were really condemning was partial reference. To take an example; when a man is charged with two offences under the Penal Code and the Judge agrees with the verdict in respect of one of the charges and disagrees with the other, he, in that circumstance, must leave the whole case open for the consideration of the High Court. The whole case must mean the case of the particular accused. That, in our view, has been made clear by the decision of the Supreme Court. The reason for the decision has been elucidated in the following paragraph in the judgment of the case just referred to above:
'The effect of the amendments to Section 307 of the Code made in 1923 and 1955 lend further support to the view that it is the whole case which must be preferred and not a part of it. The provisions of Section 307(1) before the amendment of 1923 were so expressed as to make it possible to say that it was necessary for the trial Judge to refer the whole case concerning every accused on all the charges framed against them irrespective of the fact that the Judge was in agreement with the jury with respect to a particular accused on all the charges framed against him. The amendment of 1923 introduced the words 'any accused person' in place of the words 'the accused' and 'in respect of such accused person' in Section 307(1). The amendment, accordingly, enabled the Judge to accept the verdict of the jury on all the charges framed against any accused person and to record a judgment with reference to him while referring the case of another accused to the High Court where he disagreed with the verdict on any of the charges framed against him. The amendment was made to remove the necessity of referring the whole case, including the case of an accused concerning whom the Judge was in agreement with the verdict on all the charges framed against him. The amendment would have been unnecessary if Section 307(1) contemplated a reference of only a part of the case and not the whole of it.'
2. This and other passages would clearly show that what their Lordships wanted to lay down was that there should not be a partial reference in respect of an accused person.
3. Indeed when a Judge does not disagree with the verdict of the Jury he is to act under Section 306 of the Code The stage of reference is not reached at all. It is only when he disagrees with the verdict of the Jury and considers it necessary that the ends of justice requires that a reference should be made, that the time comes for him to act under Section 307. In this case the learned Judge's own order would clearly show that he did not disagree with the verdict of the Jury in respect of any of the charges against Chandra Kanta, Niranjan, Nakul and Mantu Lal. As soon as that happened the curtain fell, and the proceedings should have concluded with an order made under Section 306 of the Code. We have taken note of the learned Judge's view that the Jury's verdict of not guilty in respect of the charge of rioting in favour of the four accused imperils the charge of rioting as against the remaining two. That may be the position arising in law. If on the evidence only six persons are alleged to have been participants in the riot then, of course, the learned Judge would be entitled to think that the verdict of the Jury as respects the charge of rioting against Bepin and Brindaban would be perverse and not sustainable. He might then make a reference, it he thought proper, to this Court keeping open all the charges in respect of the two accused Bepin and Brindaban, whereafter it would be the duty of this Court to deal with such reference in accordance with the law.
4. In the foregoing circumstances, we must reject the Reference as incompetent, return the records and direct the learned Judge to consider the verdicts afresh in the light of the observations made and dispose of the matter in accordance with law.
5. I agree.