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Rajasthan High Court
Wanchoo C.J. & Modi, J.
Chhagansingh - Appellant
Versus
The State - Respondents
S.B. (referred to D.B.) Criminal Appeal No. 51 of 1952
Decided On : August 26, 1953
In all trials with the aid of assessors, the trial Judge should be careful to place all the charges on which the accused are being tried clearly to each of the assessors and should record their opinions on all the charges put to them. It may be that even though the Judge has put all the charges to each of the assessors, he may not have understood the questions put to him and, therefore, may not have given his opinion on any one of the charges. In such a case, it is the further duty of the trial Judge to put supplementary questions in the matter so that the opinion of each assessor on each charge is properly and intelligibly given. It is further necessary that the trial Judge should prepare a proper record of all such questions and answers so that it may be possible for this Court to find out whether the provisions of sec. 309 have been properly followed in any case in which a failure to observe the provisions of that section is urged on behalf of the accused. At the same time no universal rule can be laid down that a breach of the provisions of sec. 309 Cr.P.C. would amount to a material irregularity sufficient to vitiate the trial in every case. The correct view of law appears to be that it will be a matter to decide in each case whether the irregularity alleged is a material one and amounts to an improper mode of trial which would vitiate it, or a mere irregularity which would be curable under the provisions of sec. 537 Cr.P.C. Thus it may happen that the trial Judge may not have invited opinions of the assessors at all on any of the charges for which the accused is tried in a case. In such a case the trial is an improper trial and such an irregularity cannot be cured under sec. 537 Cr.P.C Another class of cases would be where the opinion of the assessors may have been asked on some charges on which the accused has been tried but not on others. In this type of cases also the irregularity committed is a serious one and would be such as to cause prejudice to the accused and the failure to comply with the provisions of sec. 309 Cr. P. C. would not be curable under sec. 537 Cr.P.C. The above rule will, however, not apply to cases where a person is charged with a graver offence and is convicted of a minor one, and similar other cases. There is a third category of cases where the question put by the trial Judge is vague and the answer is also vague. In such cases, the question to determine would be whether it can be held that the Judge put all the charges to the assessors and they rendered their opinions On all of them. If that could be said in a case of this kind, mere vagueness in the putting of questions and the answers would not be an irregularity sufficient to vitiate a trial. On the other hand, if it cannot be postulated in such a case that the Judge has put all the charges to the assessors and it appears that he omitted to put some of them, and that the assessors returned their answers only on some of the charges put to them, but not on all the charges or on none at all such an irregularity would amount to an improper mode of trial and would not be curable and the conviction in such cases could not be sustained and the accused must be re-tried from the stage at which the irregularity occurred. (Para 7)
"Where a trial Judge fails to require each of the assessors to state his opinion distinctly on each of the charges for which the accused has been tried, whether such failure vitiates the trial, or is curable under the provisions of sec. 537 Cr. P. C. ?"
2. The facts of the case out of which the reference has arisen have been stated at length in the referring order and need not be reiterated. All that we think necessary to state is that the accused was charged and convicted for two offences, one under sec. 306 I.P.C. and the other under sec. 19 of the Arms Act in a trial held with the aid of assessors. It appears that at the conclusion of the trial, the learned trial Judge summed up the evidence both for the prosecution and the defence and asked the assessors to state their opinions on the case. In doing so, however, he did not require the assessors to state their opinions distinctly on each one of the charges. In other words, the opinion was asked for and given in a rather vague manner. It was, there fore, urged by learned counsel for the appellant that the learned Judge had committed a breach of the provisions of sec. 309 of the Code of Criminal Procedure, and that such a breach was fatal and vitiated the trial. Learned counsels argument was that sec. 309 Cr. P. C. came to be amended in 1953 as a result of which certain words were added therein. The relevant portion of sec. 309 as amended reads as follows:
"309. (1) When, in a case tried with the aid of assessors, the case for the defence and the prosecutors reply (if any) are concluded, the Court may sum up the evidence for the prosecution and defence, and shall then require each of the assessors to state his opinion orally on all charges on which the accused has been tried, and shall record such opinion, and for that purpose may ask the assessors such questions as are necessary to ascertain what their opinion are. All such questions and the answers to them shall be recorded.
(2) The Judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors."
The underlining (italics) is curs. It was argued that the object of the amendment was that the legislature wanted to make it Imperative that the opinions of the assessors must be asked for on all the charges or which the accused has been tried. Learned counsel further argued that it was, therefore, obvious that the accused were entitled to have the opinions of the assessors recorded on all the charges separately and that a failure to comply with the requirements of law as laid down in the amended sec. 309 amounted to an improper mode of trial sufficient to vitiate it, and was not curable under the provisions of sec. 537 Cr. P. C. Learned counsel relied on a number of authorities to which we shall now refer.
3. The first case to which our attention was invited is The Queen Vs. Matam Mal (1) (Sutherland Weekly Reporter Vol. XXII (Cr.) 34.). That case arose under Act X of 1872, and the relevant provisions were contained in sec. 255 and 261 of the Code of Criminal Procedure, then in force. In that case the accused was tried under two charges viz., one of murder and the other of culpable homicide not amounting to murder. What had happened in that case was that the assessors had not given any opinion as to whether the prisoner had committed the offence of murder or any offence at all and what they had said was that the prisoner had struck his wife with a Dao in consequence of abuse received from her. It was held by the learned Judges that the intention of the legislature was that the assessors have given a definite opinion whether the prisoner was guilty of any or which of the charges, but as that had not been done, the learned Judges held that they were unable to say whether the assessors did, in fact, mean to find the prisoner guilty of murder or of culpable homicide not amounting to murder,
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