The judge's disagreement with the jury's verdict and the necessity of making a reference to the High Court when the conditions under Section 307 of the Criminal Procedure Code are present.

JUDGMENT

Mukerji, J. - It is difficult to comprehend the exact import of the order which the learned Sessions Judge has passed in this case. His summing up was perfectly fair one, and as far as one can say from a perusal of the heads of charge recorded by him, he seems to have summed up for an acquittal of the two appellants.

2. The jury brought in a unanimous verdict of guilty u/s 302, Indian Penal Code in respect of Madhumala and u/s 328, Indian Penal Code in respect of Saroda Charan Mistri.

3. The learned Judge states in his order that had he been trying the ease alone he should have been inclined to give the appellants the benefit of the doubt on the question as to whether the appellants knew that the drug they administered was poison but as the jury seemed to have unhesitatingly rejected the case for the defence on this point, he thought that he was not justified in pressing "the slight doubts" that remained in his mind, to the extent of referring the case to this Court u/s 307, Criminal Procedure Code. This observation of the learned Judge may be taken to indicate that his disagreement with the jury was not such a complete dissent as to lead him to consider it necessary for the ends of justice to submit the case to this Court under the provisions of the said section. To this extent, perhaps, and if there was nothing else, his refusal to refer the case may be justified.

4. The learned Judge, however, goes on to observe in his order that the differentiation of the cases of the two accused by the jury did not appear to him to be justified and he states further thus, " If the accused are at all guilty, then they are both certainly guilty of murder." In his charge too he had given his ruling that if the two accused knew they were administering aconite they were guilty of murder and the charge u/s 328 was unnecessary. After this clear and definite expression of opinion on his part both to the jury and in his judgment his duty under the law was to make a reference. The duties of a Judge in this respect are clearly laid down in the section itself. That section lays down that on certain conditions existing viz., there being a disagreement between the Judge and the jury, and the Judge being clearly of opinion that it is necessary for the ends of justice to submit the case, he shall submit the case accordingly. No doubt it is ordinarily, a matter entirely with the discretion of the Judge as to whether he should make a reference or not. This discretion however, as observed in the case of Queen-Empress v. Guruvadu (1890) 13 Mad. 343 " should always be exercised when the Judge thinks that the verdict is not supported by the evidence; it is the only way in which a miscarriage of justice by a perverse verdict of a jury, which is of frequent occurrence, can be remedied by the High Court." It is no longer the law that before making a reference the Judge must be satisfied that the verdict is perverse, it is sufficient that he should be clearly of opinion that a reference is necessary for the ends of justice: Ismail Sarkar v. King-Emperor 23 C.W.N. 747. The doubts entertained by the learned Judge on the question of knowledge coupled with his definite conviction that the case was one of murder, if of any offence at all, made it obligatory for him to make a reference; his dissent from the verdict as to the character of the offence, of which the accused were guilty, was a clear, full and complete dissent nor can it be doubted for a moment that the ends of justice demanded a reference, which would have enabled this Court to deal with the facts and determine whether the appellants were really guilty and if so, of what offence.

5. The learned Judge has refrained from making a reference for reasons to which I shall presently refer. Although the offence if any of Saroda Charan Mistry is in the opinion of the Judge nothing less than murder he thought that the said appellant could be adequately punished u/s 328, Indian Penal Code and he sentenced him to u