TMI Blog1956 (4) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... C. The whole record had to be laid before the Hon'ble the Chief Justice. The third Judge, though he had the whole record before him, had to give his opinion only on the question referred to him and not on other questions which were not referred to him or which had been decided by us or on which we had not disagreed. It is provided in Section 429 of the Code of Criminal Procedure, under which we acted, that when the Judges ...... are equally divided in opinion, the case, with their opinion thereon, shall be laid before another Judge of the same Court, and such Judge ....... shall deliver his opinion, and the judgment or order shall follow such opinion. Under this provision what is required to be done in the first instance is laying the case before a third Judge; the third Judge has then to deliver his opinion and the judgment of the Court of appeal has to follow such opinion. What is meant by the word 'case' has not been explained. If it means the record of the proceedings, there is no difficulty at all because, as explained above, the whole record must of necessity be laid before the third Judge and from the laying of the whole record before him it cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re must he an opinion of a third Judge to convert the equal division into an unequal division so that the majority view can be given effect to. The third Judge has not been given any power of appeal over the two Judges; he has been empowered to give his opinion so that his opinion, should go with the opinion of one Judge composing the Court of appeal to make two opinions as against one Opinion of the other Judge. It follows that the third Judge has jurisdiction to give his opinion only on those matters on which there has been a difference of opinion. 3. I should make it clear at this stage that the division of the two Judges composing the Court of appeal must be in their opinion about the final order to be passed and not about the reasons for the final order. If the two Judges are agreed about the final order to be passed but for different reasons, Section 429 will not apply and the case will not be required to be laid before a third Judge. They will pass the final order as agreed by them. When they disagree about the final order so that they cannot pass any final order, the case must go to a third Judge. When the case goes before the third Judge, he has full power to deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 325. T. P. C., only; our brother V. D. Bhargava was, however, of the opinion that they committed no offence. He was certainly not required to hold that they committed at least the offence of Section 325, I. P. C. Having held that the appellants had a right of private defenee and that it could not be decided which of them caused the death of Bhajan Lal by' exceeding it, he could not hold them guilty under Section 325, I. P. C., first because we were agreed that they were guilty at least under Section 325, I. P. G. The ease was referred to him and not a particular question. Section 429 requires the case to be referred to a third Judge and not a particular question arising in the case and on which there has been a difference of opinion. If a particular question on which the Judges have disagreed is referred to a third judge, he may be able to answer it even though in his opinion it does not arise or is immaterial or does not conclude the case. But it is the case that is referred to him, i.e., he has to give his opinion about the final order to- be passed in the appeal. I respectfully agree with Jagannadha Das, C. J. when he laid down in -the --'State of Orissay Minaket ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uilty of the other offence, the third Judge has power to decide the question of both the offences or of only the offence in respect of which there was a division of opinion did not arise for answer by the learned Judge, and was not answered by him. 5. The contention of Sri P. C. Chaturvedi that our brother V. Bhargava had jurisdiction to decide the question of not only the offence of Section 304 I. P. (J., but also of the offence of Section 323, I. P. C., is not supported by' the principle underlying the cases cited by him. Just as the word 'case means the case of each accused separately so also, when an accused is charged with two or more offences, it means the case in respect of each offence. As regards the meaning of the word 'case' there is no justification whatsoever for distinguishing between a trial involving two or more persons for one offence and a trial of one person for two. or more offences. Just as the 'ordinary rule is that two persons who have committed the same offence should be tried separately so also the ordinary rule is that a person who has committed two offences-should be tried separately for them. It is for the sake of convenience an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Judge. The two Judges have to pass the judgment or order in accordance with the third Judge's opinion which must be an opinion on the case referred to him. If he expresses an opinion on a case not referred to him, the two Judges are not only-not required, but also cannot, pass the final order on its, basis. 7. We were not equally divided in the case against the appellants for the offence of Section 323, therefore, it could not be, and was actually not, referred to the third Judge. We find' that our brother V. Bhargava has also not given any opinion on that case. He has given his opinion only on the case against the appellants for the offence of Section 304, I. P. G. He has not said a word about the offence of Section 323. He held that the death of Bhajan Lal was caused by the appellants while conceding their right of defence, but he did not hold that they caused injuries to Mithu in exercise of the right of defence. They might have had a private right of defence to cause injuries to Bhajan Lal but might have had no private right of defence to cause injuries to Mithu; therefore, his holding that they had a right to cause injuries to Bhajan Lal does not amount to his hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pt. I) and to six months' rigorous imprisonment under Section 323 read with Section 34, I. p. C. 12. The accused appealed to this Court and the case was heard by my brother Desai J. and myself. I was of opinion that the accused acted in self defence but that they exceeded their right of private defence and, therefore I was of opinion that the conviction should be altered from one under Section 304 (Pt. I) read with Section 34, to one under Section 325, I. P. C. as, in my opinion, they had exceeded their right of private defence. My brother Desai J. was of opinion that the conviction should have been under Section 302, I. P. G, and, therefore, there was no scope for any interference with their conviction and sentence. Thus, the case was laid before the Hon'ble the Chief Justice for obtaining the opinion of a third Judge on the question, it was also mentioned in the referring order that the appellants' conviction and sentences under Section 323 read with Section 34, I. P. C. were to be maintained. On reference the case was laid before V. Bhargava J. He has given his opinion that the conviction of these appellants should be set aside altogether. He was further of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 419 ((S) AIR V 42) (G) was a case where the accused were charged under Sections 147 and 302 read with Sections 149 and 307 read with Section 149 I. P. C. and there were no direct and individual charges against the' accused for specific offences under Sections 302 and 307, I. P. C. The Sessions Judge thought that all the accused were guilty of the various offences charged with and sentenced them. On appeal the High Court acquitted some of the accused, and as regards one of the accused who was suspected of firing his pistol against the deceased, the High Court, while setting aside the conviction and sentence of the accused under Section 307 read with Section 149, and Section 302 read with Section 149, I. P. C. .convicted and sentenced him, under Section 307 to transportation for life and to death under Section 302, I. P. C. It was hold: there were no direct and individual charges against the accused for the specific offences under Sections 307 and 302, Penal Code. The absence of specific charges against the accused under Sections 307 and 302, I. P. C. was a very serious lacuna in the proceedings and had materially prejudiced the accused, Hence the convictions and sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge and I further agree that in the circumstances, it is not a fit case for trial de novo. 15. Before a final judgment is delivered I think it is always open to a Judge to correct himself. I would even go to the extent of saying that if any illegality or irregularity is pointed out to the Judge before he actually signs and delivers the final judgment in Court, it is his duty to take that point into consideration. It would, in my opinion, be preposterous to say, that even if the Judge is satisfied that his previous opinion which is not yet final, is demonstrated to be illegal yet he must adhere to it. I have not yet become functus officio, I am still possessed of the case. The only prohibition may be under Section 369, Cr. P. C. when final judgment is delivered by me, but not till then. Their Lordships of the Supreme Court in -- 'Surendra Nath Singh v. State of Uttar Pradesh', 1954 SC 194 (AIR V 41) (H) have said: In our opinion, a judgment within the meaning of these sections is the final decision of the court intimated to the parties and to the world at large by formal pronouncement or delivery in open court. * * * * * It is evident that the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian Penal Code taken out of his jurisdiction? The second question is whether the third Judge was bound to agree with the opinion of either of the two Judges, or he could give a third and independent opinion? Thirdly, in case, the third Judge gives an opinion which is different from the opinion of either of the two Judges, is the bench bound by the opinion of the third Judge? 17. As regards the first question, the word case has not at all been defined anywhere in the Code of Criminal Procedure. In my opinion, the word case is a comprehensive word and includes the whole case. That would be the ordinary meaning in common parlance. If a word is not defined in the statute then it would be safe to use it in the meaning which has been attributed to it by long standing judicial decisions, or if there has been no judicial decision it should be used in the sense in which it is being used in common parlance. 18. A man may be charged under various sections, but there is only one case against him. Only one case is registered and numbered. It a person is being tried under five sections no one will say that there are five cases pending against the accused. This word seems to have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing a case. In the Litter event, the decision of such Bench on the question so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question and dispose of the case after deciding the remaining questions, if any, arising therein. The word in the first part of the first sentence used is a case , and according to the context it clearly means that if a case is referred, it is not confined to any question, but if any particular question is referred then the bench is to answer that question alone. The meaning of the word case here also clearly is the whole matter in dispute. 22. I have taken assistance from other statutes and rules in interpreting the meaning of the word case only where the ' case is to be taken out of one court and sent to another as Section 429, Cr. P. C. provides. 23. It was argued on behalf of the State that the difference contemplated in Section 429, Cr. P. C. was the matter in difference only and could not include the whole matter, particularly it could not include that portion of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their opinion, while as regards the other the Judges may be equally divided in opinion. In such a contingency it is quite possible to maintain the view that, upon a reasonable interpretation of the term case what has to be laid before another Judge is the case of the prisoner as to whom the Judges are equally divided in opinion. I am now concerned only with the contingency in which the Judges of the Court of Appeal are equally divided in opinion on the question of guilt of one accused person, though upon certain aspects of the case they may be agreed in their view. In such a contingency what is laid before another Judge, is, not the point or points upon which the Judges are equally divided in opinion, but the case . This obviously means that, so far as the particular accused is concerned, the whole case is laid before the third Judge, and it is his duty to consider all the points involved, before the delivers his opinion upon the case. The judgment or order follows such opinion which need not necessarily be the opinion of the majority of the three Judges; for instance, at the original hearing of the appeal, one Judge may consider the prisoner not guilty, another Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s held: such topics as the history of the legislation and the facts which give rise to the enactment may usefully be employed to interpret the meaning of the statute, though they do not afford a conclusive argument. This dictum in the judgment was based on the observations of Lord Halsbury in -- 'Powell v. Kemp-ton Park Racecourse Co/, (1899) AC 143 (K). 27. Therefore, 1 would be justified in this case to look at the history of the section and see whether at any time any attempt was made by the legislature to introduce any provisions contrary to the accepted interpretation. 28. After the decision of Mookerjee, J. when there was a Bill in 1914 to amend the Code of Criminal Procedure, suggestions were made for amending the section in the following language : When the Judges composing the Court of Appeal are equally divided in opinion, the case shall e re-heard before them and another Judge of the Court, and the judgment or order shall follow the opinion of the majority of the Judges so re-hearing the case. (Vide 1914 Gazette of India Pt. V p. 111). The reason for the amendment as contained in the report of the Select Committee is in the following words, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of the proviso will be inapplicable in the case of Judicial Commissioners Courts which do not at present consist of five Judges, we prefer to leave the law as it is, and we delete this clause. Therefore in 1923 when the Criminal Law Amendment Act was passed this section was retained in its original wordings. In this historical setting, I would be justified in presuming that the legislature approved of the decision of Sir Ashutosh Mookerjee, J. 29. Learned counsel for the State relied on 28 Cal LJ 32, also reported in 1919 Cal 862 (AIR V 6) (B). That was a case in which there was a difference of opinion between Chitty, J. and Smither, J. and the matter was referred to Woodroffe, J. Chitty, J. was of opinion that the accused could not-be convicted, but he was of opinion that there should be a trial de novo, while Smither, J. was of opinion that there should be no retrial, and that' the accused should be acquitted. When the matter came before Woodroffe, J. on the interpretation of the word case , he in his judgment says : It has consequently been argued that the only question before me is whether the accused should be acquitted or retried. Without deciding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that it will not be in the interest of justice in these circumstances to order a trial de novo. By The Court. 33. Since we are equally divided in opinion on the question whether the appellants' conviction and sentence under Section 323 I.P.C,, should be maintained or quashed, we direct the case to be laid before the Hon'ble Chief Justice for obtaining another Judge's opinion on the matter. Oak J. 34. This is a reference to a third Judge for opinion in view of difference of opinion between the learned Judges of a Division Bench of this Court in the disposal of a criminal appeal. The appeal arose out of a case, in which three persons, Suborder, Ram Lal and Natha were convicted by the learned Additional Sessions Judge of Farukhabad. Subedar was convicted under Section 304 I.P.C. and Section 323/34, I.P.C. Ram Lal and Natha were convicted under Section 304/34, I P.C, and Section 323/34 I.P.C. Various sentences were passed upon these three persons for, the different offences. 35. According to the prosecution, Bhajan Lal deceased and his brother 'Mitthu had two adjoining plots Nos. 495 and 498/8 under their cultivation. There was some waste land to the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... feeling annoyed about the alteration of the boundary. Bhajan Lal was joined by Ram Kishun, Nattha (not the accused) and Mitthu. These four persons, beat Subedar accused. Ram Lal and Natha accused pleaded that they used their lathis against. Bhajan Lal and Mitthu in order to save the life of Subedar accused. The learned Sessions Judge came to the conclusion that, three accused, Subedar, Ram Lal and Natha, had beaten Bhajan Lal deceased and Mitthu in a sudden and free fight in the heat of passion, and not in exercise of any right of self defence. So the three accused, Subedar, Ram Lal and Natha, were convicted by the learned Sessions Judge as detailed above. Lallu and Dulare accused were acquitted. Subedar, Ram Lal and Natha appealed to this Court. 37. The appeal came up for hearing before a Division Bench consisting of Mr. Justice Desai and Mr. Justice Vishnu Datta. Mr. Justice Desai was of the opinion that, the appeal should be dismissed, M . Justice Vishnu Datta was of the opinion that although the appellants' conviction and sentence under Section 323/34, I.P.C. should be maintained, their conviction under Section 304/34, I.P.C. should be altered to Section 323/34, I.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be laid . . . for obtaining another Judge's opinion on the matter. This time the case has been referred to me for opinion. 40. Firstly, I shall express my opinion as regards disposal of the appeal on merits. The main question involved in the appeal was whether appellants acted in the exercise of the right of private defence. Mr. Justice V. Bhargava concluded: The attack was first made from the side of the complainant when Bhajan Lal attacked Subedar and thereafter a fight developed. The appellants, one of whom was first attacked, consequently had the right of defence of person. Therefore, inflicting injuries on Mitthu and Bhajan Lal at the first stage they cannot be held guilty of having committed any offence whatsoever. The learned Deputy Government Advocate was prepared to accept this finding of the learned' Judge. The learned Judges of the Division Bench are now agreed that, the appellants should be acquitted of the charge under Section 304, I. P. C. It will, therefore, be sufficient for me to discuss whether the appellants' conviction under Section 323, I. P. C. for causing injuries to Mitthu should be maintained OP not. I shall assume that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence of the person at least during the first stage of the fight, it cannot be said that the-appellants acted in furtherance of a common intention to commit any offence. So Section 34, I. P. C. is inapplicable. If any accused is to be convicted, under Section 323, I. P. C., that conviction will have to be based on the footing that that accused is personally responsible for a particular injury. The evidence on the record does not disclose that, any particular injury of Mitthu was caused by a particular accused at a definite stage of the-fight. Further as shown above, the right of private defence continued as against Mitthu even after Bhajan Lal's fall. For these reasons, it la not possible to convict any accused under Section 323, I. P. C. Now I proceed to consider how the appeal ought to have been disposed of in the light of the opinion expressed by Mr. Justice V. Bhargava. The learned Judges of the Division Bench were not agreed about the true effect of the opinion of Mr. Justice V. Bhargava. It was open to the learned Judges to obtain a clarification from the learned Judge as to what exactly he intended to convey by his opinion. 44. As previously observed, Mr. Justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the judgment on order shall follow such opinion. It is to be noted that, what is referred to another Judge is the case , and not any particular point on which there is difference between the Judges composing the Court of Appeal. 47. The true scope of Section 429, Cr. P. C. was discussed by Mookerjee, J. at the same length in 38 Cal 202 (A). The learned Judge observed at page 208: Two points are worthy of note in connection with this section: first, that what is laid before another Judge is the 'case, and, secondly, that the Judgment or order follows the opinion delivered by such Judge. I am not now concerned with the question of the trial of two prisoners with regard to one of whom the Judge composing the Court of Appeal may be agreed in their opinion, while as regards the other the Judges may be equally divided in opinion. In such a contingency it is quite possible to maintain the view that, upon a reasonable interpretation of the term 'case', what has to be laid before another Judge is the case of the prisoner as to whom the Judges are equally divided in opinion. I am now concerned only with the contingency in which the Judges of the Court of Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open to the third Judge to maintain the conviction of that accused. Even the intermediate position may lead to curious results. Suppose, the trial court records conviction under Section 302, I. P. C. When the matter goes in appeal before a Division Bench, one Judge is of the opinion that the conviction should be under Section 304, I. P. C., while the second Judge is of the opinion that the accused should be acquitted altogether. In such a case it will be open to the third Judge to come to the conclusion that the conviction under Section 302, I. P. C. should stand. In that case the Division Bench will be obliged to uphold the conviction under Section 302, I. P. C., although both the Judges of the Division Bench are agreed that the accused is not guilty under Section 302, I. P. C. 51. The decision in 'Sarat Chandra Mitra's case (A) was quoted with approval by a Division Bench of Allahabad High Court in 1943 All 272 (AIR V 30) (E). In that case there were several appellants. There was disagreement between the learned Judges of the Division Bench as regards one appellant, Subedar Singh. The question arose whether the whole case or the case of that particular appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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