Lancelot Sanderson, C.J.
1. This matter comes before us upon an application to review the case, a certificate having been given by the learned Advocate-General in pursuance of Clause 26 of the Letters Patent.
2. The case was tried before my learned brother Mr. Justice Fletcher and a Jury at the Criminal Sessions and it resulted in the conviction of both the accused.
3. There were many grounds stated in the application to the learned Advocate-General, but after hearing the argument of the learned Counsel for the accused who, in my opinion, put the case very clearly and concisely on behalf of his clients and. after reading the note which has been made by the learned Judge who tried the case, the matter resolved itself into two points: first, it alleged that certain material and important points in support of the case for the defence had not been put before the Jury by the learned Judge and secondly, that sufficient distinction had not bean made between the cases of the two accused persons.
4. To my mind, it is clear from the memorandum which has been drawn up by the learned Judge, and to which reference has been made, that the case which was set up for the defence was put to the Jury: and, the learned Counsel who has appeared to-day for the accused has frankly admitted that that is so. That case in its outline was that the woman Meher Afzan had gone to the house in Calcutta of her own accord, that she was a woman of immoral character, and not only that, but that her father had been a party to her coming to Calcutta in order that she might have an opportunity of earning more money in Calcutta than she did in her native place. This case far the defence, as I have already said, was put to the Jury and the argument addressed to as today has been that although that was so, there were material facts in support of that case to which the attention of the Jury was not drawn, as for example the different statements which the woman had made on occasions previous to the time when she was in the witness box in the Sessions Court.
5. Now, there is no satisfactory record of the learned Judge's summing up. We have no notes taken by the learned Counsel for the prosecution. We have a note which was taken by the junior learned Counsel on behalf of the accused which is very short, and which, it is admitted by the learned Counsel who argued the case today, does not pretend to be anything more than a statement of the various heads of the summing up of the learned Judge.
6. The matter is brought before the Court now soma six months or more after the case was tried. The learned Judge has given us a memorandum of his summing up the best he can, having regard to his recollection after this lapse of time, and we have to deal with the case upon these materials.
7. Having regard to the memorandum of the learned Judge and the statements which have been made by him during the course of the hearing, I am not satisfied that the particular and individual points to which the learned Counsel has drawn our attention, were not put to the Jury, as for instance, one of the points upon which the learned Counsel strongly relief, was that the learned Judge had not drawn attention to the fact that the women had made certain statements before a mm called Abdul Gunny who was an Inspector of Police and further statements before the Deputy Commissioner, Mr. Shaw, and that such statements were entirely inconsistent with the statements which she made in the trial Court. It appears that Mr. Bannerjee, who was the learned junior Counsel for the prosecution, has a dear recollection as to that point, and he has stated that he remembers the learned Judge pointing out to the Jury that if the Jury believed the statements which the woman had made to Abdul Gunny and the Deputy Commissioner, Mr. Shaw, then the case for the prosecution entirely failed. I refer to that as an instance for the purpose of showing how impossible it is for us to come to the conclusion upon the materials which we have before us, that the particular and individual points which are relied upon by the learned Counsel were not really put to the Jury: especially having regard to the fact that it is dear that the case for the defence was put to the Jury by the learned Judge and their attention was drawn to the fact that there were serious discrepancies in the case and that the Jury must consider those discrepancies and whether they were sufficient to induce them to come to the conclusion that the evidence for the prosecution was not to be relied on.
8. As regards the distinction in the cases of the two individual accused persons, the learned Judge, as I understand to day, has said he remembers a distinction being drawn between the two accused
9. For these reasons I have come to the conclusion that the learned Counsel for the accused has not made out a case for the interference of this Court and, the result is, that inasmuch as he has not satisfied me that there was material misdirection or omission to direct upon material and vital points, it is not necessary for us to go into the merits of the case.
10. Before I conclude my judgment, I desire to refer again to the fact that there were no notes of the learned Judge's gumming up taken by the learned junior Counsel for the prosecution.
11. In my judgment it is most desirable that in these case, especially in an important case like this, the learned Counsel for the prosecution should take a note of the summing up the learned judge. It is impossible for the learned Judge himself, in his summing up, to take a note. What has happened in this case is an instance of how desirable it is that these notes should be taken. It may be that if in this case adequate and reasonable notes of the learned Judge's summing up had been taken, a great deal of time, trouble and expense might have been saved. At all events, I hope that in future, regard will be had to what has been said, and that proper notes of the learned Judge's summing up will be taken.
12. As to the preliminary point that was raised by the learned Counsel for the prosecution, Mr. Das, namely, that under Clause 26 of the Letters Patent it was not competent to the Advocate-General to grant a certificate merely in respect of the questions whether the direction was sufficient and whether the alleged omissions amounted to misdirection, I express no opinion upon, that point, and, in my judgment, in this case it is not necessary to express any opinion because, assuming that it was competent to the learned Advocate-General to grant a certificate on those grounds, I have come to the conclusion that there was no sufficient case made for the Court to interfere.
13. The question before us is whether the direction to the Jury was a sufficient direction in law and whether the alleged omission to direct the Jury set out in Paragraph 12 of the certificate, was misdirection.
14. The argument is based on notes of charge taken by junior Counsel for the defence. There were no notes taken by Counsel for the prosecution as, I agree with the learned Chief Justice, should have been done. It is admitted by the learned Counsel who appears for the prisoner that the note of the learned Judge's summing up made by Counsel is not complete, being merely heads, as he calls it, of the charges, and in several particulars its accuracy is called in question by Mr. Justice Fletcher, the trial Judge. In other cases, the learned Judge has no recollection owing to the lapse of time since the trial, but having regard to the admitted incompleteness of the note of Counsel and its proved inaccuracy as regards particular points, I am unable to hold that a case has been made out on which we can say that there has been any material omission to direct or insufficiency of direction.
15. The learned Judge's memorandum states that he took the Jury through the whole of the evidence relating to the alleged abduction. The defence Counsel addressed the Jury, we believe, for six hours, and though it may be that this would not excuse the Judge from referring to matters of prime importance, because the Jury should learn from him what are the important points to which their attention should be directed, I am not satisfied on his statement that he made any such omission here, it is net possible, moreover, for a Judge summing up to go over every particular of the evidence. Every non-direction is not necessarily misdirection. Learned Counsel has argued that for a case lasting eleven days it was rot possible for the learned Judge to have dealt with all the material points to the case in the time which the charge to the Jury, according to the learned Judge, took. But the defence have to establish that the particular points were not and could not have been put before the Jury in that time. I cannot say that this has been shown. The learned Judge's statement is that he took the Jury through the whole of the evidence relating to the alleged abduction. I may in particular point out that as regards the Doctor's examination of Feroza there is no certificate granted by the learned Advocate-General. As showing the difficulty of ascertaining at this distance of time and of recollecting what occurred at the trial, the learned junior Counsel for the prosecution has clear and distinct recollection that the learned Judge did refer to a particular point as regards which a complaint has been made but which is not stated in his note.
16. I may observe that there was no application by Counsel at the time to place any particular point which is now the subject of complaint before the Jury,
17. In my opinion, no grounds have been made out in fact for our interference, even if the defense Counsel contention as to the meaning of Section 26 of the Letters Patent is correct, a matter as to which I express no opinion and into which it is not necessary under the circumstances to enquire. I, therefore, agree in the order which is proposed to be made.
18. I agree that we should refuse to review this case.
19. I agree.
20. I agree.