Chhagansingh v. State — 1953 DIGILAW 154 (RAJ)

MODI, J.—The question which has been referred to this Bench for decision has been formulated as follows: "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. 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. 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, or of anything else, and, therefore, they set aside the conviction and remanded the case to the court of Session with the direction to re-open the proceedings from the point at which the illegality had occurred, and to require the assessors to give their opinion definitely and thereafter to decide the case afresh. Learned counsel emphasised that even under the Code as it stood in 1874, it was insisted that the assessors must have been asked to state distinctly whether the accused were guilty of the offences under which they had been charged, and that the amendment of sec. 309 made in the year 1923 put this requirement beyond all doubt or dispute. 4. The next case relied on by learned counsel for the appellant is Mst. Shevanti vs. Emperor (2) (A. I. R. 1928 Nag. 257.). In this case the case referred to above in XXII W. R. (Cr.) 34 (1) was followed and it was held the words "on all charges" must be interpreted to mean that distinct opinion on each charge must be taken and recorded. 5. The next case relied on was Appaya Baslingappa Honnapur vs. Emperor (3) (A.T.R. 1924 Bom. 246.). In that case the accused was charged with an offence of abetment of murder. The assessors returned a verdict of not guilty and the Sessions Judge acquitted him under that charge but instead convicted him under sec.201 of the Penal Code. The accused had not been charged under that section and no opinion of the assessors was invited on it. In that case the accused was charged with an offence of abetment of murder. The assessors returned a verdict of not guilty and the Sessions Judge acquitted him under that charge but instead convicted him under sec.201 of the Penal Code. The accused had not been charged under that section and no opinion of the assessors was invited on it. In these circumstances, it was held that it was imperative for the Judge to take the opinion of the assessors on the charge on which it was proposed to convict him and as that had not been done, the conviction was quashed and the accused was acquitted. We are of opinion that this case perhaps goes too far as it cannot be said that the opinion of the assessors was not taken on all the charges on which the accused was tried. The general rule is that an accused person cannot be convicted of an offence with which he was not charged and of which he had no notice, but secs. 237 and 238 Cr.P.C. are exceptions to this rule and enable the court to convict a person of a offence which is disclosed in the evidence and for which he might have been convicted although he was not charged with it. When a person is charged with an offence and the facts proved reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it, or a person may be convicted not of the offence itself but of an attempt to commit such an offence although he is not so separately charged. Thus, where the accused is charged under sec. 202 of the Penal Code and the opinions of the assessors were taken on such a charge,, it is our opinion, open to the Sessions Judge under sec. 237 Cr.P.C. to convict the accused under sec. 201 of the Penal Code though the opinions of the assessors were not taken on that charge. In this connection we may refer to Begu vs. Emperor (1) (A.I.R. 1925 P.C. 130.) although it was not cited at the bar. In that case the accused were charged under sec. 302 1. P. C. and the opinions of the assessors were invited on that charge but the Sessions Judge convicted some of the accused under that section and certain others under sec. In that case the accused were charged under sec. 302 1. P. C. and the opinions of the assessors were invited on that charge but the Sessions Judge convicted some of the accused under that section and certain others under sec. 201 although they were not charged of the offence under the latter section, and the opinions of the assessors were not asked for on that charge. It appears to have been urged before their Lordships of the Privy Council that the opinions of the assessors having not been asked for on the latter charge,] the trial was bad. But their Lordships declined to interfere and observed that the aberration from the precise direction of the Code was not shown to have led to miscarriage of justice. We are of the opinion, therefore, that the, Bombay case(3) does not lay down the correct law and goes too far. In this view, the view taken in Fattan vs. Emperor (2) (A.I.R. 1956 All. 87.) that such a departure from strict provisions of the Code is at best an irregularity not sufficient to vitiate the trial, seems to us to be the correct one. 6. We may next refer to Lal Behari Singh vs. Emperor (3) (A.I.R. 1934 Oudh, 354.) on which learned counsel for the appellant strongly relied. In that case, it was held that "in a trial with the aid of assessors, accused are entitled to have the opinion of the assessors recorded on all the charges framed against them under sec. 309 Cr.P.C. and the failure of the trial Judge to comply with the provisions of that section, in not having recorded the opinion of assessors as regards one of the charges, vitiates the trial. What had happened in that case was that although the accused were charged of an offence under sec. 396 I. P. C, the opinion of the assessors was not asked for on that charge at all and yet the learned Sessions Judge convicted the accused under sec. What had happened in that case was that although the accused were charged of an offence under sec. 396 I. P. C, the opinion of the assessors was not asked for on that charge at all and yet the learned Sessions Judge convicted the accused under sec. 396 I. P. C. It was observed by the learned Judges that the Sessions Judge was bound to record the opinion of each assessor in respect of all the charges of which the accused had been tried and his failure to do so showed that it amounted to a disregard of an express provision of law as to the mode of trial and was, therefore, sufficient to vitiate it in conformity with the principle laid down by their Lordships of the Privy Council in N.A. Subramania Iyer vs. King Emperor (4) (28 I.A. 257.). We wish to emphasize in connection with this case that the accused were being tried there for a particular offence and were charged under it and still the learned Sessions Judge did not invite the opinion of the assessors on that charge and convicted the accused of it. This clearly amounted to a grave breach of the provisions of sec. 309 Cr. P. C. and was not curable under sec. 537 Cr.P.C. 7. The next case to which we may now refer is Manjur vs. State [FB] (5) (A.I.R. 1950 M.B. 37 (F.B.).). In that case the accused were tried on charges under secs. 148, 149, and 302 of the Penal Code but the assessors were not asked to give their opinions on each charge separately and all that they said was that the accused were guilty of murder. The question in these circumstances arose whether the trial was vitiated for non-compliance with the provisions of sec. 309 Cr. P. C. It was held that the mere omission to record an opinion as regards the charge under sec. 148 I.P.C. was of no consequence as the accused had been acquitted of that charge. As regards the conviction under sec. 302 it was pointed out that the charge against the accused appeared to be under sec. 302 read with sec. 149 I.P.C. although the body of the charge mentioned the individual act of the accused causing the murder with the result that the accused was convicted of murder (S. 302) on a charge of sec. 302 read with sec. 302 it was pointed out that the charge against the accused appeared to be under sec. 302 read with sec. 149 I.P.C. although the body of the charge mentioned the individual act of the accused causing the murder with the result that the accused was convicted of murder (S. 302) on a charge of sec. 302 read with sec. 149 I.P.C., and it was not at all clear that the opinion of the assessors was taken with respect to his constructive liability for the murder or for the substantive offence of murder. In these circumstances, it was considered that it could not be said with certainty whether the question before the assessors was anything else than that of joint liability which, in case of some of the accused, was certainly there, and it was, therefore, held that the conviction of the accused under sec. 302 I.P.C. could not be sustained. It was further held, however, that the trial became bad only from the point from where the court should have required the assessors to state their opinion on each charge, and the case was remanded for a fresh disposal after recording the opinion of the assessors on each charge, that is, under secs. 148, 302 read with sec. 149 and also sec. 302 I.P.C. The learned Judges further pointed out that where the Sessions Judge fails to record the opinion of the assessors on each of the charges on which the accused persons were being tried, it is a question in each case whether such failure would amount to a material irregularity sufficient to vitiate the trial or not. The question to determine would be whether the questions put to assessors and their opinions indicate an application of their mind to all the charges or not and whether the form of the question or opinion as recorded discloses a prejudice and has occasioned a failure of justice. 8. A careful analysis of the provisions of the Criminal Procedure Code and the authorities on this point leads us to the conclusion that it is eminently desirable that 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 learned 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. We have no doubt that a careful compliance with these instructions would, reduce the possibility of re-trials and save considerable time and money. At the same time we cannot lay down a universal rule 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 more irregularity which would be curable under 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. We have no doubt that in such a case the trial is an improper trial and such an irregularity cannot be cured under sec. 537 Cr.P.C. 9. 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 which are exemplified by the Oudh case (1) (A.I.R. 1934 Oudh 354.), referred to above, it would also appear to us that 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. In this type of cases which are exemplified by the Oudh case (1) (A.I.R. 1934 Oudh 354.), referred to above, it would also appear to us that 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. The present case does not appear to us to fall within any of the two categories pointed out above. There is, in our opinion, a third category of cases where the question put by the trial Judge is vague and the answer is also vague. The present case appears to us to be a case of this kind. In such cases, the question to determine would be whether it can be held that the learned 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, we are of the view that 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 learned 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 all the charges or on none at all, then we have no hesitation in saying that 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. 10. Our answer to the point of reference, therefore, cannot be a simple affirmative or a negative and is on the lines indicated above. 10. Our answer to the point of reference, therefore, cannot be a simple affirmative or a negative and is on the lines indicated above. It will be for the learned Single Judge to decide on the facts of this case whether the irregularity alleged falls within one or the other category of cases pointed out by us above, and then to decide whether the irregularity is curable under sec. 537 Cr. P. C. or is a material one sufficient to vitiate the trial. With this answer, let the reference be returned.