Maclean, C. J.
1. This case comes before us upon a Certificate of the Advocate General, befor the powers entrusted to him by the Letters Patent, and he has Certified the following points of law for our decision:--'Whether the accused should have been jointly tried; whether the direction to the Jury hereinbefore specified was right in law and whether the omissions to direct the Jury do not in law amount to a misdirection.'' These ate the only points submitted to us. I will deal with them in the same order in which they have been dealt with by the certificate and by the learned Counsel in the case.
2. I will first deal with the question of whether the two accused should have been jointly tried. That depends upon Section 239 of the Code of Criminal Procedure, which says: 'When more persons than one are accused of the same offence or of different offences, committed in the same transaction... they may be charged and tried together or separately as the Court thinks fit.' I entertain no doubt that in this case, the offences committed were in the same transaction: and, if that be so, it is a question for the Court, in. the exercise of its judicial discretion, to say whether the accused should be tried together or separately. The Court, in this case, in the exercise of that discretion, thought that they should be tried jointly, and having come to that conclusion, and there being nothing 10 indicate that it was not in the exercise of a proper judicial discretion, I do not see how it is open to us to interfere upon such an application as the present. That point therefore fails.
3. I now pass to the other points mentioned in the Certificate, viz., whether the direction to the Jury specified in the Certificate was right in law, and whether the omissions to direct the Jury do not in law amount to a misdirection.
4. Two or three matters have been dealt with on these points. Before dealing with them, I may say that I entirely subscribe to the judgment of the Full Bench of this Court in the case of In re Elahee Buksh W.R. 80. Cr. B.L.R. Sup. Vol. 459 (F.B.). But there is one portion of that judgment which I may, perhaps, read as bearing upon the question now before us. Sir Barne Peacock, C.J. said:--'Although. I am of opinion that the Legislature intended that the Sudder Court should have the power of setting aside a verdict of guilty pronounced by a Jury upon an erroneous or defective summing up of the evidence by the Presiding Judge, yet I think that it was not their intention that a verdict of guilty should be set aside in every case in which there is a defective or erroneous summing up. It was their intention to provide protection for the innocent, but not chances of escape for the guilty', and, then he refers to Sections 426 and 439 of the then Code of Criminal Procedure, one of which is substantially identical to Section 537, in the present Code, and then he goes on to say:--If a verdict and conviction could not under such circumstances be set aside, trial by Jury in the Courts of Sessions in this, country would be fraught with the most; dangerous consequences. On the other hand, if every convict against whom a verdict of guilty is pronounced by a Jury, has a right to have that verdict set aside upon appeal, and to obtain his discharge whenever it can be shown that the Presiding Judge has not properly directed the Jury as to the degree of weight which ought to be given to particular evidence, a wide doer would be thrown open for the escape of guilty men, and the due administration of the Criminal Law of this country would be placed in the greatest jeopardy in those districts to which trial by jury has been extended. A verdict of acquittal by a Jury cannot be reversed, and ample protection is afforded to prisoners by avowing the High Court to reverse a verdict of guilty for any error or defect in. the summing up, whenever the Court is of opinion that a failure of justice has been thereby occasioned.'
5. Applying that doctrine to the present case let us consider what the charges of misdirection are. The point upon which Mr. Allen mainly relied was that stated in paragraph (b) of the Certificate which runs as follows: 'Whereas it has been represented to me that the first accused Charu Chundra Mukerjee was materially prejudiced by the omission of the learned Judge' to draw the attention of the Jury to the fact that, even a cording to the account given by the second accused Nflmoney Chatterjee in the absence of the. 'first accused Cham Chundra Mukerjee to some of the witnesses for the prosecution, when the first accused Charit Chunder Mukerjee saw him as afore said, he said to the second accused Nilmoney Chatterjee that the payment of the said 100 (hundred) notes of Rs. 10 each by him to the second accused Nilmoney Chatterjee was purely a mistake.' The evidence there referred to will be found at page 58 of the paper-book. The statements were elicited in cross-examination by Mr. Gregory who appeared for the first accused. The witness said, 'I was present in Currency Office, when accused No. 11 was examined. I made a statement about it in the Police Court.
Q. Is this correct? accused 11 said that Charu etc. came to his house' and said:--'By mistake I paid you a bundle of notes
6. I entertain very grave doubt whether that statement was, in the circumstances, receivable in evidence, If it is not evidence, the learned Judge was right in not directing the attention of the Jury to it. If it were, as the question of whether accused No. 1 made a mistake or whether he acted intentionally was undoubtedly put to the Jury, I do not think the omission to direct their attention to this particular statement could properly be regarded as amounting to a misdirection such as to justify the Court in setting aside the conviction This point then fails.
7. Passing from that, the next point is stated in paragraph 7 of the Certificate :--'Whereas it has been further represented to me that the learned Judge omitted to point out in his charge to the Jury that although evidence of statements alleged to have been mace by the two accused incriminating each other were admissible as against the accused making them, yet such statements could not be regarded as evidence as against the co-accused, and that such omission has materially prejudiced the first accused'. Upon this the learned Judge' informs us that he did in his charge to the Jury point out that the statement as described by the witnesses of one accused was not evidence against the co-accused: and, the note of Mr. Bannerjee supports this view. It is very difficult for this Court upon such scanty materials as we have, as to the actual language used by the learned Judge, in his charge, to say with any certainty, what was or was not said. It is, however, not unimportant to notice that, before the Jury-retired, Counsel for the defence did not suggest that this point had not been put by the learned Judge, or invite the learned Judge to pat it to the Jury. This point then fails.
8. The last matter is stated in paragraphs 11 and 12 of the Certificate: 'Whereas the Jury found the first accused Charu Chunder Mukerjee guilty on the first count and the said second accused Nilmoney Chatterjee guilty on the second count by a majority of six against three but brought in an unanimous verdict of guilty against the second accused Nilmoney Chatterjee on the third count, and, whereas, it has been represented to me that as soon as the verdict was delivered an application was made to the learned Judge by Counsel for accused Nilmoney Chatterjee, submitting to the said Judge, that the latter should not accept or act upon the said verdict, in a much as it was inconsistent and showed that the Jury had utterly failed to understand the case against the accused.' This, point has not been certified by the Advocate-General and even if if had been, there is nothing in it to vitiate the conviction.
9. The conviction, therefore, must stand.
10. This judgment will cover both the cases.
11. I think it is unnecessary, that I should say anything further in this matter.
12. I agree in the judgment of the learned Chief Justice, and have nothing to add.
13. I agree in the judgment delivered by the learned Chief Justice.
14. I also agree.