A reference made under S. 307 of the Code of Criminal Procedure must be of the whole case against the accused and not a part of it.

Judgment

JAFER IMAM, J. : In this appeal by special leave the substantial question for consideration is whether the reference made to the Calcutta High Court by the Additional Sessions Judge of Alipur under S. 307 of the Code of Criminal Procedure (hereinafter referred to as the Code) was competent and, if not, whether the High Court acted with jurisdiction in convicting or acquitting any of the accused who were tried by the Additional Sessions Judge and a jury.

2. There were eight accused on trial in the Court of Session all of whom were charged under Ss. 147 and 304/149 of the Indian Penal Code. Four of them, namely, accused No. 1, Sashi Mohan Debnath, accused No. 2, Rajendra Debnath, accused No. 3, Manindra Debnath and accused No. 6, Rohini Kumar Debnath were further charged under S. 201, Indian Penal Code. The trial Judge delivered a charge to the jury which was favourable to the accused. The jury returned a unanimous verdict of not guilty under S. 304/149 of the Indian Penal Code, which the learned Judge accepted. He, accordingly, acquitted all the accused charged with this offence. The jury, however, with respect to charges under Ss. 147 and 201 of the Indian Penal Code returned a unanimous verdict of guilty against the accused charged with these offences. The trial Judge disagreed with this verdict and made a reference under S. 307 of the Code to the High Court, being of the opinion that the accused were not guilty of these offences. The High Court accepted the reference in part and in agreement with the jury s verdict of guilty under Ss. 147 and 201 of the Indian Penal Code convicted the accused Sashi Mohan Debnath, Rajendra Debnath, Sudhanshu Kumar Debnath, Dinesh Chandra Debnath and Bonomali Das under S. 147 of the Indian Penal Code and sentenced each of them to undergo one year s rigorous imprisonment and the accused Sashi Mohan Debnath and Rajendra Debnath under S. 201 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for three years. The sentences with respect to the accused Sashi Mohan Debnath and Rajendra Debnath were ordered to run concurrently. The High Court did not accept the verdict of the jury with respect to the accused Manindra Debnath and Gouranga Debnath under S. 147 of the Indian Penal Code and under S. 201 against Manindra Debnath and Rohini Kumar Debnath and acquitted them.

3. The present appeal is by the accused Sashi Mohan Debnath, Rajendra Debnath, Sudhanshu Kumar Debnath and Bonomali Das. When the appeal came on for hearing on 12-9-1956, it was found necessary by this Court to have the appeal heard in the presence of the accused No. 3, Manindra Debnath, accused No. 6, Rohini Kumar Debnath and accused No. 8, Gouranga Debnath. The reason for issuing notices upon them has been fully stated in the order passed that day. Accordingly, notices were issued to these accused and they were served upon Manindra Debnath and Gouranga Debnath. So far as Rohini Kumar Debnath was concerned, it was reported that he could not be traced and no one could say where he had gone after selling all his properties and that no relative of his could be found. None of these three accused have entered appearances in this Court.

4. It is unnecessary to refer either to the facts concerning the occurrence or the case of the prosecution and the defence, as the only question for decision before us is a question of law. Indeed, no submissions were made either on behalf of the appellants or on behalf of the respondent on the facts of the present case.

5. In order to determine whether the reference made under S. 307 of the Code by the Additional Sessions Judge of Alipur was competent, it is necessary to examine the provisions of that section and consider some of the decisions of the High Courts in India in this connection. But before we do this, some general considerations concerning trials by jury and interference with their verdict by the High Court may be stated. The scheme of the Code clearly suggest