The judge's reference to the High Court must be made in accordance with the law and should not contradict the acceptance of the jury's verdict.

JUDGMENT

M.C. Ghose, J. - In this case, four men, Dulapada, Purna, Charu, and Bishnu were tried by the learned Additional Sessions Judge of Howrah and a jury of nine persons. Each of them was charged u/s 364(abduction with intent to murder), Section 394(causing hurt in committing robbery) and Section 302(murder) and also criminal conspiracy to commit each of the above three offences. The jury unanimously found Dulapada Mal "not guilty" of all the six charges. They by a majority returned a verdict of not guilty" as against Purna Chandra Kanrar and Charu Chandra Palain in respect of all the charges. With regard to Bishnu Chandra Das, in respect of abduction and conspiracy for abduction, they unanimously found him "not guilty;" in respect of murder and conspiracy to murder they found him "not guilty', by a divided verdict of 6 against 3. In respect of conspiracy for robbery, they found him "not guilty" by a divided verdict of 7 against 2. In respect of Section 394, they found him "not guilty" by a divided verdict of 5 against 4. The learned Sessions Judge accepting the verdict of the jury acquitted the first three men of all the charges. He also accepted the verdict of the jury in respect of five of the charges against Bishnu and acquitted him of those charges. This was on 28th April 1933. He did not then pass any order against Bishnu in respect of Section 394, I.P.C. About ten days later, on 8th May, he wrote the following order:

I have given very careful thought to the case against the accused Bishnu Chandra Das u/s 391, I. P C.,and am unable to agree with the jury's majority verdict of "not guilty." I consider the verdict to be perverse and absolutely against the weight of evidence and in the interests of justice I decide to refer this part of the case u/s 307, Criminal P. C, to the Hon'ble High Court for orders.

2. Before we consider the evidence, it should be noted that the learned Sessions Judge acted illegally in making this imperfect reference. He acted under Sub-section (1), Section 307, Criminal P. C, which states:

When the Judge disagrees with the verdict of the jurors or of a majority of the jurors on all or any of the charges on which any accused person has been tried, and is clearly of opinion that it is necessary for the ends of justice to submit the case in respect of such accused person to the High Court, he shall submit the case accordingly.

3. The learned Judge apparently omitted to peruse Sub-section (2) of Section 307 which states:

Whenever the Judge submits a case under this section, he shall not record judgment of acquittal or of conviction on any of the charges on which such accused has been tried.

4. In this case, if it was his intention to refer the case of Bishnu to this Court, he should not have recorded an order of acquittal in respect of any of the charges against him. If on the other hand, he intended to accept the verdict of the jury in respect of five of the charges then he thereby precluded himself from making a reference to this Court in respect of the sixth charge. The case was that the deceased Pulin Chandra Santra was a youngman of village Dulley, P.S. Sankrail in the District of Howrah. Accused Bishnu and one other accused were men of the same village. Two other accused were men of the neighbouring villages. The case is that the four men enticed the deceased on false pretences to a certain empty hut near the village Railway Station in the evening of Thursday, 1st September, 1932, and there they murdered and robbed him. Some witnesses were examined, who saw the deceased between 4 and 6 p.m. at the level crossing near the railway station. Some witnesses had also deposed as to seeing one or more of the accused in the same neighbourhood, Pulin was not seen alive after that Thursday afternoon. On the following Saturday evening 3rd September a dead body was seen floating in a ditch. Information was given at the local Thana on the same night. A police officer arrived on the morning of Sunday 4th Septem