Patna High Court
Rameshwar Singh vs Emperor on 18 March, 1937
Equivalent citations: 170IND. CAS.464, AIR 1937 PATNA 440
JUDGMENT Mohammad Noor, J.
1. This case has come up to us in somewhat unusual circumstances. The facts leading up to this reference by the Additional Sessions Judge of Snauabad are these: The accused Rameshwar Singh was tried before the Assistant Sessions Judge of Suahabad under Section 417 and Section 36b, Indian Penal Code. There were two alternative charges under Section 36(3, one of abducuug and the other of kidnapping girl Chhaita with intent that she may either be compelled to marry against her will or seduced or forced to illicit intercourse. The case of the prosecution was that one Musammat Chhatia, daughter of one Gajinder Rai, the complainant in the' case, was kidnapped by one Khublal Singhf On his complaint the Hub-Divisional Magistrate issued a search warrant for her recovery. Later on, somehow or other Gajinder Rai got back the girl, and filed an application to this effect before the Sub-Divisional Magistrate who recalled the search warrant and ordered the girl to be produced before him on May 20, 1936. This was not done and the learned Magistrate ordered her production on May 29, 1936. Gajinder Rai's case is that the accused Rameshwar Singh who was looking after the criminal case on his behalf went to his house on May 20, 1936, and in his absence told his wife Moti Jhari that the girl had to be produced before the Sub-Divisional Officer and asked her to allow the girl to accompany him for production before the Court. Moti Jhari allowed the girl to go with the accused, but instead of taking her to the Court the accused took her on an ekka to his own house at Sinha. When Gajinder Rai returned home from Arrah and heard that the girl had been sent with the accused, he suspected his intentions and went to his house at, Sinha and demanded the restoration of the girl. The accused did not consent and said that he intended to marry her. Thereupon Gajinder Rai apprehending a breach of the peace left the village and came to Arrah for filing a complaint in Court. As the time for filing the complaint was over it was not filed on the 21st, but on, the next day, that is, on May 22, 1936. On that complaint the Sub-Divisional Magistrate issued a search warrant for recovery of the girl, which was not executed for about two months. The accused surrendered in Court on June 22, and produced the girl on July 22, 19J6, in the meantime the case was made over for disposal to an Honorary Magistrate, who did not examine the girl till a very late stage of the case. The accused was committed for trial to the Court of Session on the facts stated above. The defence of the accused was that the girl was made Over to him by her parents for marriage for a consideration of Rs. 400 out of which Rs. 300 was actually paid and the marriage was in fact performed by the father himself and that this false case was instituted as the accused did not pay the balance, i e. Rs. 100.
2. The offence under Section 366, Indian Penal Code, is triable by a jury, and the one under Section 417, Indian Penal Code, with the aid of assessors. The same gentlemen who constituted the jury for the trial of the first offence acted as assessors for the trial of the second offence. The charge of the learned Assist ant (Sessions Judge to which I will come later was as strongly for the acquittal of the accused as a charge can be. He pointed out to the jury the weakness and improbabilities of the prosecution case and the discrepancies in the evidence of witnesses. The jury, however unanimously found the accused guilty of abduction under Section 366, Indian Penal Code, and as assessors, found him guilty under Section 417, Indian Penal Code. The learned Assistant Sessions Judge, wrote a short judgment referring mostly to his charge to the jury, did not agree with the opinion of the assessors in respect of the offence under Section 417, Indian Penal Code, and acquitted the accused of that charge. He.did not, however, think himself justified in referring the case to this Court under Section 307, Criminal Procedure Code, in respect of the offence of abduction and accepting the verdict of the jury sentenced the accused to one year's rigorous imprisonment.
3. Rameshwar Singh appealed to the Sessions Court. The learned Additional Sessions Judge who heard the appeal agreed with the views of the learned Assistant Sessions Judge and held that the charge was not proved. He was strongly of opinion that in the circumstances of the case it was the duty of the learned Assistant Sessions Judge to refer the case to this Court under Section 307, Criminal Procedure Code. He held, and in my opinion rightly held, that cheating which is punishable under Section 417, Indian Penal Code, was an ingredient of the offence of abduction as the prosecution case was that the girl was induced to go with the accused by deceitful means and these deceitful means were the subject-matter of the charge of cheating. Therefore, j£ the learned Assistant Sessions Judge was strongly of opinion that deceitful means were not used by the accused and acquitted him of cheating, he ought not to have accepted the verdict of the jury in respect of abduction. The learned Additional Sessions Judge was, however, of opinion that there was no misdirection in the charge to the jury, and the case did not come under Section 423(2), Criminal Procedure Code, and he, therefore, found himself unable to interfere in appeal. He considered two alternative courses which he thought were open to him. One was to make a recommendation, to the Local Government to intervene and remit the sentence and the other was to refer the case to this Court under Section 438, Criminal Procedure Code, for an order on the Assistant Sessions Judge to refer the case to this Court under Section 307, Criminal Procedure Code. He adopted the latter course and relying upon the observation of Mukerji, J., in Saroda Charan Mistri v. Emperor AIR 1925 Cl. 795 : 7 Ind. Cas. 606 : 6 Cr. LJ 1006 : 41 CLJ 320, has recommended for an order on the Assistant Sessions Judge to refer the case to this Court.
4. I agree with the learned Additional Sessions Judge's opinion that having expressed himself so strongly in favour of the accused and having held that deceitful means were not used and further that the story of the accused about the negotiation of marriage had a ring of truth, the learned Assistant Sessions Judge would have been well advised if he had referred the case to this Court. Perhaps he was under the impression that reference is to be made only if a Judge finds the verdict of the jury to be entirely perverse. That view is incorrect as has been clearly pointed out by Courtney-Terrell, C. J., in Emperor v. Rafi Mian 11 Pat. 669 : 139 Ind. Cas. 885 : AlR 1932 Pat. 246 : (1932) Cr. Cas. 643 : 33 Cr. LJ 877 : 13 PLT 418 : Ind. Rul. (1932) Pat. 269. Though on the one hand reference should not be made in every1 case in-which the Judge finds himself in disagreement with the jury, on the other, the power of reference is not confined to those cases only in which in the opinion of the Judge the verdict of the jury is entirely perverse. No hard and fast rule can be laid down. The Judge must apply his mind and decide whether the ends of justice demand a reference. No doubt, when a Judge finds himself in disagreement with the jury and has to decide whether a reference should be made, there is a heavy responsibility upon him as is the responsibility of the Magistrate in a case triable by a Court of Session to decide whether the case should or should not be committed. But because the responsibility is great, there is no reason why it should not be undertaken. The fact, however, is that the learned Assistant Sessions Judge has decided not to refer, and the question is whether we &n order him to do so. The observations of Mukerji, J- in the case referred to by the learned Additional Sessions Judge are as follows:
If under circumstances such as those that are in this case the learned Judge fails to do what the law requires him to do and thus deprives this Court of an opportunity to deal with the case on its merits, he does something more than merely acting in the erroneous exercise of his discretion. He fails to exercise his jurisdiction and this failure operates to the prejudice either of the (Jrown or of the. accused, and speaking for myself, I am of opinion that it is well within our power under Section 439, Criminal Procedure Code, to direct him to submit the case to us for our consideration under Section 307, Criminal Procedure Code.
5. Strictly speaking, the observations of that eminent and learned Judge are obiter dicta. The procedure indicated by him was not adopted in that case and the conviction was set aside on the ground that the verdict of the jury was erroneous owing to a misunderstanding on their part of the law as laid down by the trial Judge. Duval, J. who added a short judgment of his own does not appear to have shared the view of Mukerji, J. which seems to have been dissented from in the same High Court in Bepin Chandra Mundal v. Emperor AIR 1928 Cal. 444 : 111 Ind. Cas. 323 : 29 Cr. LJ 819 : 32 CWN 673 : 47 CLJ 483. Rankin, C.J. said:
Now, I am not of opinion that it is correct law to say that if the High Court thinks that the Judge ought to hare been of opinion that it is necessary for the ends of justice to submit the case, this Court can direct him so to do or can act as though he has in fact submitted the case. The conditions laid down are not merely that the Judge disagrees with the verdict of the jury, but also that the Judge is clearly of opinion that it is necessary for the ends of justice to submit the case. The Judge is either clearly of opinion or not clearly of opinion and according as he acts in that matter the consequences must be. It is quite impossible, in my judgment, to direct the learned Judge to be clearly of a certain opinion and the language used by the statute shows that the Judge's view on that point is to be final for that purpose; and 1 am not prepared, in a case such as this, to enquire into the question whether or not the learned Judge ought to have been of opinion that it was necessary for the ends of justice to submit the case.
6. In this Court also the case of Saroda Charan Mistri v. Emperor AIR 1925 Cl. 795 : 7 Ind. Cas. 606 : 6 Cr. LJ 1006 : 41 CLJ 320, was distinguished in Baljit Ram v. Emperor 6 Pat. 817 : 106 Ind. Cas. 673 : AIR 1928 Pat. 120 : 29 Cr. LJ 81 : 9 PLT 191, which was followed in Ramdas Rai v. Emperor 8 Pat. 314 : 117 Ind. Cas. 173 : AIR 1929 Pat 313 : (1929) Cr. Cas. 99 : 30 Cr. LJ 721 : 10 PLT 409. In the last mentioned case Macpherson, J. held that:
It is not in every case where a Judge disagrees with the verdict of the jury that he should make a reference under Section 307 Uriminal Procedure Code. A reference should be made only when the verdict of the jury is manifestly wrong, and this is equally so whether the verdict with which the Judge disagrees is one of acquittal or one of conviction. Section 307, does not impose an obligation on the Judge to refer a case to the High Court except where the conditions set out in Section 307, are satisfied.
7. In my opinion, it is highly undesirable that in every case in which the Judge finds himself in disagreement with the jury, a reference: should be made to the High Court. This will practically make him a Judge of fact which in cases triable by jury he is not, and will minimise the responsibility of the jury. In order to make a reference, there should be disagreement of such a nature that the Judge holds that for the ends of justice the verdict of the jury should be superseded. With my profoundest respect to the view expressed by Mukerji, J., I think there is no power in this Court in a case in which the Judge has not thought fit to refer a case to this Court under Section 307, Criminal Procedure Code, to direct him to do so. The Legislature has made him the sole Judge to decide whether a reference should be made. The decision whether a reference should or should not be made depends upon the extent of disagreement which the judge a] one can feel. An order by this Court will, as pointed out by Rankin, C.J. amount to directing the Judge to form a particular opinion about the verdict of the jury. The reference of the learned Additional Sessions Judge, therefore, cannot be accepted. He ought to have adopted the course which was taken by Rankin, Order J. in Bepin Chandra Mandal v. Emperor 1928 Cal. 444 : 111 Ind. Cas. 323 : 29 Cr. LJ 819 : 32 CWN 673 : 47 CLJ 483, and should have left the case in the hands of the executive authority if he thought that injustice had been done and he could not interfere under the law.
8. The next question for consideration is what order should be passed when the record of the case is before us and the facts have been brought to our notice. It appears that though the learned Additional Sessions Judge has not expressly dismissed the appeal he has practically done so. He seems to have clearly come to the conclusion that the view of the learned Assistant Sessions Judge about the merits of the case was correct and had it been open to him to do so, he would have set aside the conviction, but having found that there was no misdirection in the charge of the learned Assistant Sessions Judge, he refrained from doing so and instead of referring the case for orders of the Local Government has made a reference to this Court. The position, therefore, in my opinion, is that the appeal of the accused has been dismissed. Had not the learned Additional Sessions Judge referred the case to this Court it would have been open to the accused to move this Court in revision and ask us to interfere on the ground that the learned Additional Sessions Judge was wrong in holding that there was no misdirection and if we had found that there was misdirection by the learned Assistant Sessions Judge which had been ignored by the learned Additional Sessions Judge and which has occasioned failure of justice we would have interfered. The fact that we have examined the record on an incompetent reference by the Additional Sessions Judge does not alter the position. We must interfere if a case for interference has been made out. Therefore, we have to consider whether there is a misdirection which has occasioned a failure of justice and the case comes within Section 423(2), Criminal Procedure Code. That there has been injustice admits of no doubt, Both the learned Additional Sessions Judge and the learned Assistant Sessions Judge were of opinion, that the case was not proved and I agree with them. The only question is whether there is a misdirection in the charge.
9. I have said that the accused was tried for two alternative charges under Section 366, Indian Penal Code, i.e. abduction and kidnapping. The learned Assistant Sessions Judge placed before the jury the difference between kidnapping and abduction and pointed out that the offence was kidnapping if the girl was below 16 years and abduction if she was above 16 years of age, and if she was taken away by deceitful means. The jury definitely stated that they did not find the accused guilty of kidnapping, and thus found the girl not to be below lb years of age. This being the case, in my opinion, the verdict of abduction was due to a very important omission in the charge of the learned Assistant Sessions Judge about the intention of the accused. The jurors in their capacity as assessors found the accused guilty of cheating, showing that they believed that the girl was taken away by deceitful means, but this alone was not sufficient to convict the accused of abduction unless she was taken away with a certain specified intention, that is to say, either to be forced or seduced to illicit intercourse or for being married against her will. On this point there is practically no direction. The learned Assist ant (Sessions Judge at one place says:
If there be no evidence that the girl was compelled to accompany the accused by force or deceitful means, the accused cannot be convicted under Section 366, Indian Penal Code. He may be convicted under some other sections but there is no charge under any other section.
10. So far he was perfectly right. But he ought to have told them further that if they held that the girl was not below 16 years of age, they could only find the accused guilty of abduction if they found that he took her away by deceitful means with a certain intent and ought to have placed before them the points to be considered in this connection. Now, the two intentions specified in Section 366, are illicit intercourse and marriage against the will of the girl. The girl made no allegation of illicit intercourse which in fact was not the case of the prosecution. I have said that the defence of the accused was that he took the girl away with the consent of her parents who had arranged to many her to him for a consideration of Rs. 400 out of which Rs. 300 was paid, and, as the accused did not pay the remaining Rs. 100, this false case had been instituted against him. It was also alleged that in fact the ceremony of marriage was performed by the girl's father. The complainant also stated that when he had gone to the accused and asked him to let the girl 'go, the accused said that he was going to marry her. In fact, the case of the prosecution also was that the. girl was taken away for marriage. Therefore, it was admitted that the girl was taken away for marriage. But the prosecution contended on account of a certain relationship existing between the girl and the accused, there could not be a legal marriage between them and, therefore, the connection between them was to be illicit.
11. The learned Judge clearly pointed out to the jury that no law was placed be* fore him which prohibited the marriage of the girl with the accused. In other words, he directed them to bold that the marriage between them was legal. If so, the question of illicit intercourse did not arise. The only question, therefore, was whether the marriage was to take place without the consent of the girl. Consent of the parents was absolutely immaterial as the girl was found to be of age. But in the whole charge to the jury there is not a word by which the jury has been asked to find whether the marriage which the accused intended to perform was going to be without the consent of the girl. On this vital ingredient of Section 366 of the Indian Penal Code, the learned Judge gave absolutely no assistance to the jury. This non-direction, in my opinion, amounted to a serious misdirection and in the present easel hold that it has occasioned miscarriage of justice. The result is that the reference is discharged and in the exercise of our powers under e. 439, Criminal Procedure Code, I would set aside the conviction and sentence, and acquit the accused.
Rowland, J.
12. I entirely agree.