# 1~61 Thi man•z1rn1111 •f Tockl•i ExJletirnenJai Station rtf111sent1d b.J the Indian Tea Assoeitition v. The Workmen

- **Citation:** [1962] Supp. 1 S.C.R. 567
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 460 of 1960
- **Bench:** S. K. Das, K. SmrnA RAO, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-61-thi-man-z1rn1111-f-tockl-i-exjletirnenjai-station-rtf111sent1d-b-j-the-2562
- **Pages:** 115

## Headnote

. Jury 'l'rial-Oharge-Misdirection-Reference by Judge,
if and when competent-Plea of General Exception-Burden
of proof-"Grave anrl sudden provocation"-Test-Power of
High Oonrt in reference-Gode of Criminal Procednre(Act, 5
of 1898), ss. 307, 410, 417, 418(1), 423(2), 297, 155 (1), 162Imlian Penal Gode, 18n0 (Act 45 of 1860), ss. 302, 300, Exception 1·-lndian Evidence Act, 1872 (l•o/ 1872), s. 105.
Appellant Nanavati, a Naval Officer, was put up on
trial under ss. 302 and 304 Part I of the Indian Penal Code
for the alleged murder of his wife's paramour. The prosecution case in substance was that on the day of occurrence his
wife Sylvia confrssed to him of her illicit intimacy with Ahuja
and the accused went to his ship, took from its stores a revolver and cartridges on a false pretext, loaded the same, went
to Abuja's flat, entered his bed room and shot him dead.
The defence, inter alia, was that as hi• wife did not tell .him
if Ahuja would marry her and take charge of their children,
he decided to go and settle the matter with him. He drove
his wife and children to a cinema where he dropped thrm
promising to pick them up when the show ended at 6 P. M.,
drove to the ship and took the revolver and the cartridges on
11 fat.e pretext intending to shoot himself. Thc;n he drove
1~61
Thi man•z1rn1111 •f
Tockl•i ExJletirnenJai
Station rtf111sent1d
b.J the Indian Tea
Assoeitition
v.
The Workmen
6aj1ntragadkor J.
1~1
November 24.
1161
Ji:. M. /fanm-ati
v.
1'ht .St(lta of
Mahrtraslitro
568 SUPREME COURT HEPOR'.l'S [l!J62] SUPP.
-
his car to Abuja's office and not finding him ther., drove to
his flat.
After an altercation a struggle ensued betw<en the
two and in course of that struggle two shots went off acci·
dentally and hit Ahuja.
Evidence, oral and documentary,
was adduced in the case including thr<e letters written by
Sylvia to Ahuja. Evidence was also given of an extra-judicial
confession made by the accused to pro~curion witness J2 who
depoS<d that the accused when leaving the place of occurr·
encc told him that he had a quarrel with Ahuja as the latter
had 'connections' with his wife and therefore he killed him.
This witness also deposed that he told P. W. 13, Duty
Officer at the Police Sta1ion, what the accused had told him.
This statement was not recorded by P. W. 13 and was denird
by him in his cross-examination.
In his statement to the
investigation officcr it was :ilso not recorded.
The jury return•
ed a verdict of 'not guilty' on both the charges by a majority
of 8 : 1.
The Sessions Judge disagreed with that verdict, as
in his view, no reasonable body of men could bring that
,·errlict on the evidence and referred the matter to the High
Court under s. 307 of th~ Code of Criminal Procedure. The
t"o Judgrs of the Dil'ision Bench who heard the matter
agreed in holding that the appellant was guilty under s. 302
of the Indian Penal Code and sentenced him to undergo
rigorous imprisonment for life.
One of them held that there
were misdirrrtions in the Sessions Judge's charge to the jury
and on a revie\\' of the C\·idcnce came to the conclusion that
the accused was guilty of murder and the verdict of the jury
was pen·erse. The other Judge based his conclusion on the
ground that no reasonable body of persons could come to the
conclusion that jury had arrived at.
On appeal to this Court
by special lea\'e it was contended on behalf of the appellant
that under s. 307 of the Code of Criminal Procedure it was in·
cumbcnt on the High Court to decide the competency of the
reference on a prr11sal of the order of reference itself since
it had no jurisdiction to go into the evidence for that purpose,
that the High Court was not empowered bys. 307(3) of the
Code to set aside the ,·erdict of the jurr on the ground that
there were misdirections in the charge, _that there were no
misdirections in the charge nor was the verdict perverse antl
that since there was gra\·c and sudden provocation the offence
committed if any, was not murder but culpable

## Text

_Characters 0–39,595 of 230,651. This is a partial read: ask again with offset=39595 for what follows._

(I) S.C.R. SUPREME COURT RF.PORTS
567
to draw an analogy between the requirements or
the senior research staff and the junior staff with
wl:wse chims the tribunal was dealing. TherPfore,
we are not satisfied that there is any substance in
the grievance made by the workmen against the
a.ward passed by the tribunal in respect of house
allowance. The result is Civil Appeal No. 460 of
1960 fails and is dismissed.
There would be no order as to costs in both
the appeals.
Appeal No. 459 allowed.
Appeal No. 460 dismissed.
K. M. NANAVATI
v.
STATE OF MAHARASHTRA
(S. K. DAS, K. SmrnA RAO and
RAGHUBAR DAYAL, JJ.)
. Jury 'l'rial-Oharge-Misdirection-Reference by Judge,
if and when competent-Plea of General Exception-Burden
of proof-"Grave anrl sudden provocation"-Test-Power of
High Oonrt in reference-Gode of Criminal Procednre(Act, 5
of 1898), ss. 307, 410, 417, 418(1), 423(2), 297, 155 (1), 162Imlian Penal Gode, 18n0 (Act 45 of 1860), ss. 302, 300, Exception 1·-lndian Evidence Act, 1872 (l•o/ 1872), s. 105.
Appellant Nanavati, a Naval Officer, was put up on
trial under ss. 302 and 304 Part I of the Indian Penal Code
for the alleged murder of his wife's paramour. The prosecution case in substance was that on the day of occurrence his
wife Sylvia confrssed to him of her illicit intimacy with Ahuja
and the accused went to his ship, took from its stores a revolver and cartridges on a false pretext, loaded the same, went
to Abuja's flat, entered his bed room and shot him dead.
The defence, inter alia, was that as hi• wife did not tell .him
if Ahuja would marry her and take charge of their children,
he decided to go and settle the matter with him. He drove
his wife and children to a cinema where he dropped thrm
promising to pick them up when the show ended at 6 P. M.,
drove to the ship and took the revolver and the cartridges on
11 fat.e pretext intending to shoot himself. Thc;n he drove
1~61
Thi man•z1rn1111 •f
Tockl•i ExJletirnenJai
Station rtf111sent1d
b.J the Indian Tea
Assoeitition
v.
The Workmen
6aj1ntragadkor J.
1~1
November 24.
1161
Ji:. M. /fanm-ati
v.
1'ht .St(lta of
Mahrtraslitro
568 SUPREME COURT HEPOR'.l'S [l!J62] SUPP.
-
his car to Abuja's office and not finding him ther., drove to
his flat.
After an altercation a struggle ensued betw<en the
two and in course of that struggle two shots went off acci·
dentally and hit Ahuja.
Evidence, oral and documentary,
was adduced in the case including thr<e letters written by
Sylvia to Ahuja. Evidence was also given of an extra-judicial
confession made by the accused to pro~curion witness J2 who
depoS<d that the accused when leaving the place of occurr·
encc told him that he had a quarrel with Ahuja as the latter
had 'connections' with his wife and therefore he killed him.
This witness also deposed that he told P. W. 13, Duty
Officer at the Police Sta1ion, what the accused had told him.
This statement was not recorded by P. W. 13 and was denird
by him in his cross-examination.
In his statement to the
investigation officcr it was :ilso not recorded.
The jury return•
ed a verdict of 'not guilty' on both the charges by a majority
of 8 : 1.
The Sessions Judge disagreed with that verdict, as
in his view, no reasonable body of men could bring that
,·errlict on the evidence and referred the matter to the High
Court under s. 307 of th~ Code of Criminal Procedure. The
t"o Judgrs of the Dil'ision Bench who heard the matter
agreed in holding that the appellant was guilty under s. 302
of the Indian Penal Code and sentenced him to undergo
rigorous imprisonment for life.
One of them held that there
were misdirrrtions in the Sessions Judge's charge to the jury
and on a revie\\' of the C\·idcnce came to the conclusion that
the accused was guilty of murder and the verdict of the jury
was pen·erse. The other Judge based his conclusion on the
ground that no reasonable body of persons could come to the
conclusion that jury had arrived at.
On appeal to this Court
by special lea\'e it was contended on behalf of the appellant
that under s. 307 of the Code of Criminal Procedure it was in·
cumbcnt on the High Court to decide the competency of the
reference on a prr11sal of the order of reference itself since
it had no jurisdiction to go into the evidence for that purpose,
that the High Court was not empowered bys. 307(3) of the
Code to set aside the ,·erdict of the jurr on the ground that
there were misdirections in the charge, _that there were no
misdirections in the charge nor was the verdict perverse antl
that since there was gra\·c and sudden provocation the offence
committed if any, was not murder but culpable homicide not
amounting to murder.
Held, that the connections were without substance and
the appeal must fail.
Judged by its historical background and properly construed, s. 307 of the Code of Criminal Procedure was meant to
confer \vidcr po\\·crs of interference on the High Court than.
II
(1) S.C.R. SUPREME COURT REPORTS
569
in an appeal to safeguard against an erroneous verdict of the
jury. This special jurisdiction conferred on the High Court
by s. 307 of the Code is essentially different from its appellate
jurisdiction under ss. 410 and 417 of the rode, s. 423(2) conferring no powers Lut only
saving the
limitation under
s. 418(1), namely,. that an appeal against an order of conviction
or an acquittal in a jury trial must be confined to matters
of law.
The words "for the ends of justice" in s. 307(1) of
the Code, which indicate that the Judge disag1eeing with the
verdict, must be of the opinion that the verdict was one
which no reasonable
body of men could rea< h on the
evidence, coupled with the
~·ords 'clearly of the opinion'
ga,·e the Judge a wide and comprehensive dhcretion to suit
different situations. Where. therefore, the Judge disagreed
with the ,·erdict and recorded the grounds of his opinion,
the reference was conipetent, irrespective of the que!)tion
whether the Judge was right in so differring from the jury
or forming such an opinion as to the verdict.
There is
nothing in s. 307(1) of the Code that lends support to the
contention that though the Judge had complied wi1h the
necessary conditions,
the High
Cou1 t should
reject the
reference without going into the evidence if the reasons
given in the order of reference did not sustain ths view
expressed by the Judge.
Section 307(3) of the Code by empowering the High
Court either to ·acquit or convict the accused after considering the entire evidence, giving due \\'eight to the opinions of
the Sessions Judge and the jury, virtually conferred the functions both of the ju'ry and the Judge on it.
\'\!here, therefore, misdirections vi6a:ted the verdict of
the jury, the High Court had as much the power to go into
the entire evidence in disregard of the verdict of the jury as
it had when there were no misdirections and interfere with it if
it was such as no reasonable body of persons could have
returned on the evidence.
In disposing of the referc:nce,
the High Court could exercise any of the procedural powers
conferred on it by s. 423 or any other sections of the Code.
Ramanugarh Singh v. King Emperor; (1946) L. R. 73
I. A. 174, Akhlakali Hayatalli v. 8tate of Bombay, · [1954]
S. C. R. 435, Ratan Ra; v. State of Bihar, [1957] S. C. R.
273 SU1Jhi Mohan Delmalll v. State of West Bengal [1958]
S. C.R. 960, and Empnor v. Ramdllar Kurmi, A. I. R. 1948
Pat. 79, referred to.
A misdirection is something which the judge in his
charge tells the jury and is wrong or in a wrong manner
IHI
K. M. Nanavafi
Y,
Tiu State of
kl aharaslztra
1961
K. M. Nana""i
v.
Tiu Stolt of
Mel.ara1htra
570 SUPREME COURT REPORTS [1962) SUPP.
tneding to mislead them. Even an omission to mention matters
which arc essentia1 to the prosecution or the defence case
in order to help the jury to come to a correct verdict may
also in certain circumstances amount to a misdirection.
But
in either ca5e, every n1isdircction or non·direction is
not
in itself sufficient to set aside a verdict unless it can be said
to have occasioned a failure of justice.
Mustalc Hussein v. Stak of Bombay [1953] S. C.R. 809
and Smt. Nagindra Bala Mitra v. Sunil Chandra Roy, [1960]
3 S. C. R. !,~referred to.
There is
no~· conflict between the general burden that
lies
on the prosecution in a criminal case and the special
burden imposed on the accused under s. 105 of the Evidence
Act where he plead< anv of the General Exceptions mentioned
in the Indian Penal Code. The pre<umption of innocence
in the favour of the accused continues all through and the
burden that lies on the prosecution to prove his guilt, except
where the statute provides otherwise, nc\'cr shifts.
Even if
the accused fails to prove the Exception the prosecurion has
to discharge its own burden and the evidence adduced,
although insufficient to establish the
Exception, may be
sufl'icienl to negative one or more of the ingredients of the
offence.
Woolmington v. Director of Pubik Pr08eC1tliona, L. R.
(I 935) A. C. 462, considered.
Attygalle v. Emptror,
A. I. R. 1936 P. C. 16Q, di<ting11ished.
State nf Madr1UJ v. A. Vaidyanatha Iyer, [1958] S. C.R.
580 and C. 8. D. S1oamy v. Statc, [1960) l S. C.R. 461, referred to.
Consequently, where, as 1n the in91ant ca<e, the accused
retied on the Exception embodied in s. 80 of the Indian Penal
Code and the Sessions Judge omiued to point out to the jury
the distinction between the burden that lay on the prosecu.
tion and that on the accused and explain tl1e implications of
the terms 'lawful act', 'lawful manner', 'unlawful means' and
'with proper care and caution' occurring in that section and
point out their application to the facts of the ca•e these were
serious misdirec1ions that vitiated the verdict of the jury.
Extra-judicial confession made by the accused is a direct
piece of C\·idence and the s1rin.~ent rule of approach to circum.
stantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances
mixed up the confession "ith the circumstances while direct.
ing the jury to apply the rule ()f circumstantial
cviden~e aq<I
..
(1) S.C.R. SUPREME COURT REPORTS
571
it might well be that the jury applied that rule to it, his charge
was vitiated by the grave misdirection that must affect that
correctness of the jury's verdict.
·
The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under s. 297 of the Code of
Criminal Procedure it is the duty of the Sessions Judge after
the evidence is closed and the counsel for the accused and
the prosecution have addressed th~ jury, to sum up the evidence from the correct perspective. The omission of the Judge
in instant case, therefore, to place the contents of the letters
written by, the wife to her paramour which in effect neg-atived
the c'8e made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read
to jury by the counsel for the parties, that did not absolve the
judge from his clear duty in the matter.
R. V. Roberts, [1942] l All. E. R. 187 and R. v. A/field,
[1961] 3 All. E. R. 243, held inapplicable.
The commencement of investigation under s. 155 (l} of
the Code of Criminal Procedure in a particular case, which is
a question of fact, has to be decided on the facts of the case,
irrespective of any irregularity committed by the Police Officer
in recording the first
information report under s. 154 of the
C<>de.
Where investigation had in fact commenced, as in the
instant case, s. 162 of the Code was
immediately attracted.
But the proviso to that section did not permit the eliciting from
a prosecution witness in course of his cross-examination of any
statement that he might have made to the investigation officer where such statement was not .used to contradict his evidence. The proviso al!O had no •'·application to.a oral statement made during investigation and not reduced to writing.
In the instant case, therefore, there could be no doubt
that the Sessions Judge acted illegally in admitting the evidence
of P. W. 13 to contradict P. W. 12 in regard to the confession
of the accused and clearly misdirected himself in placing the
said evidence before the jury.
Exception l to s. 300 of the Indian Penal Code could
have no application to the case. The test of "grave and sudden"
provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to
lose his self control. In India, unlike in England, words and
gestures may, under certain · circumstanccss cause grave and
audden provocation so as to attract that Exception. The m'en-
\al background created by any previous act of t4e vic!inl can
1981
r. M. Nonavati
••
The Stale •f
Maharashtra
1961
1r. ft!. T\'anovati
v.
The St1..le of
ftlaharashlr11 ·
5i2 SUPRB.'IIE COURT REPORTS [HJ62J SUPl'.
also be taken into consid_eration in judging whether the subse ...
quent act could_·, cause grave and sudden provocation, but, the
fatal blow should be clearly traced to the influence of the pas·
sion arising from that provocation and not after the· passion
had cooled down by lapse of time or otherwise,. giving room
· , and scope for premeditation and calculation.
\ .
. ManCini v. Director of Public Prosecutions, L.R. (19.;2)
A. C. I, llolmes v. Director of Public Prosecu!ions, L. R. (1916)
--· · A.C. 588 Duffy's case, [!919]! All. E. R. 932 and R. v. Thomas,
"(1837) 7 C. & P. 817, considered.
i
I
Empress v. Khogayi, (1879) I. L. R. 2 Mad. 122, Boya;
JJiunigadu v. The Qtteen,
( 1881) I. L. R. 3 Mad. 33, In re
· JJuru7ian. I. L. R. ( 19j7) Mad. 805, In re 0. Narayan, A.I.R·
1958 A. P. 235, Jan .lluhammad. v. Emperor, I. L. R. (1929)
. Lah. 861, Emperor v. Balk<., I. .L. R .. (1938) All .739 and
.
Babu Lal v. State; A. I. R. 1960 All. 223, referred to.
___ Setnble: , \Vh· ther a reasonable person in the circumstances of a_ particular case committed the offence
-und r-grave and sudden provocation ii a question of fact for the jury to decide.
. _
Holmes v. Director of Public Prosecution, L. R. (1916)
A. C. 588, conddered.
· ·
·
.
Cm~nNAL APPELLATE JURISDICTION : Criminal
Appeal No. 195 of 1960.
Appeal by special leave from the judgment
and order dated l\Iarch 11, 1960, of tho Bombay
High Court in Criminal Jury Reference No. 159 of
· 1959.
G. 8. Pathc1l.:, 8. G. Patu·nrdhan, R11jini Patel,
. Po.ru.1 A. J,Jehta, J. B. Dadachanji, Ravinder Xarain
and a. a. JJiathur, for.the\ appellant .
. : ·.
J,J.
0. Setalvad, Attorney-General of India,
· · · 0; JJJ. Trivedi, V. H. Gitmeshte, B. R. G. K . .Achar
and R. H. Dhebar, for the respondent.
HJ61. November 24. The Judgement of the
. Court was delivered by
.
.
.
Subba R•• J.
· SunnA RAO, J.-This appeal by special leave
arises out of the judgment of the Born bay High
Court sentencing Nanavati the appellant, to life
imprisonment for the murder of Prem Bhactwandas ·
Ahuja, a businessman of Bombay.
0
(1) S.C.R. SUPREME COURT REPO.H.TS
573
. This appeal presents the commonplace problem of an alleged murder by an enraged husband of
a. paramour of his wife : but it aroused considerable
interest in the public mind by reason of the publicity it received and the important constitutional
point it had given rise to at the time of its admission.
The appellant was charged under s. :102 a~ well
as under s. 3114, Part I, of the Indian Penal Code
and was tried by the Sessions Judge, Greatff Bombay, with the aid of special jury. The jury brought
in a verdict of "not guilty'' by 8 : l under both the
sections; but the Sessions ,Judge did not agree with
the verdict of the jury, as in his view the majority
verdict of the jury was such that no reasonable body
of men could, having regard to the evidence, bring
in such a verdict. The learned Sessions Judge submitted the case under s. 307 of the Code of Criminal Procedure to the Bombay High Court after
recording the grounds for his opinion.
The said
reference was beard by a division bench of the said
High Court consisting of Shelat and Naik, JJ. The
two learned .JudgeR gave separate judgments, but
agreed in holding that the accused was guilty of
the offence of murder under s. 302 of the Indian
Penal Code and sentenced him to undergo rigorous
imprisonment for life. Shelat, J., having held that
there were misdirections to the jury, reviewed the
entire evidence and came to the conclusion that
the accused was clearly guilty of the uffcnce of
murder, alternatively, he expressed the view that
the verdict of the jury was_ perverse, unreasonable
and, in any evt·nt, contrary to the weight of evidence. Naik, J., preferred to base hi> conclusion
on the alternative ground, namely, that no reasonable body of persons could have come to the conclusion arrived at by the jury. Both the learned
Judges agr'oled that no case had been made out to
reduce the offence from murder to culpable
1961
K. Af. Nanat1a1i
v.
The State of
MaharaJhl'a
Subha Boo J,
191.Jl
J(. lf .. -.litanava'i
v.
Tht Staie of
!.-laharaahtra -
Subba llao-_ ·'.
homicide not amounting to murder. The present
appeal has been preferred against the said conviction and sentence.
-
The case of the prosecution may be stated
thus : This accused, at the time of the alleged murder, was second in command of the Indian Naval
Ship "l\Iysore". He married Sylvia in 1949 in the
registry office at Portsmouth, England. They have
three children by the marriage, a boy aged 9! years
a girl ageq 5! years and another boy aged 3 years.
Since the time of marriage, the couple were living -
at different places having regard to the exigencies
of service of Nanavati. Finally, they shifted to
Bombay. In the same city the deceased Ahuja was
doing business in automobiles and was residing,
along with his sister, in a building called "Shreyas"
-till 1957 and thereafter in another building called
"Jivan Jyot" in Setalvad Road. In the year 1956;
Agniks, who were common friends of Nanavatis __
and Ahujas, - introduced Ahuja and his sister to
Nanavatis. Ahuja was unmarried and was about
34 years of age at the time of his death, Nanavati;
_as a Naval Officer, was frequently going away from
Bombay in his ship, leaving his.wifo and children
in Bombay. Gradually, friendship devCloped between Ahuja and Sylvia, which culminated in -illicit
intimacy between them. - On April 27, 1959, Sylvia
confessed to Nanavati of her_ illicit intimacy with
_Ahuja. Enraged at the conduct of Ahuja, Nanavati
went to his ship, took from• the stores of _the ship
a semi-automatic revolver and six cartridges on a
false pretext, loaded the same, went to the flat of
Ahuja entered his bed-room and shot him dead.
Thereafter, the accused surrendered himself to the
police. -He was put under arrest and in due course
he was committed to the Sessions for · facing -a
charge under a. 302 of the Indian Penal Code.
The defence version, as disclosed in the statement made by the accused before the Sessions Court
under s. 342 of the Code of Criminal Procedure and
(1) S.C.R. SUPREME COUR.T REPORTS
575
his deposition in the said Court, may Le Lriefly
stated: The accused was away with his ship from
April 6, 1959, to April 18, 1959.
Immediately after
returning to Born bay, he and his wifo we!lt to
Ahmednagar for about three days in th<- company
of his younger brother and his wife.
Thereafter,
they returned to Bombay and after a few days his
brother and his wife left them. After they had left,
the accused noticed that his wife was behaving
strangely and was not responsive or affectionate to
him. When questioned, she used to evade the issue.
At noon on April 27, 1959, when they were sitting
in the sitting-room for the lunch to be served, the
accused put his arm round his wife affectionately,
when she seemed to go tense and unresponsive.
After hmch, when he questioned her about her fidelity, she shook her head to indicate that she was unfaithful to him. He guessed that her paramour was
Ahuja. As she did not even indicate clearly whether
Ahuja would marry her and look after the children,
he decided to settle the matter with him. Sylvia
pleaded with him not go to Abuja's house, as he
might. shoot him.
Thereafter, he drove his wifo,
two of his children and a neighbour's child in his
car to a cinema, dropped them there and promised
to come and pick them up at 6 p,111. when the show
ended. He. then drove his car to his ship, as he
wanted to get medicine for his sick dog, he represented to the authorities in the ehip, that he wanted to
draw a revolver and six rounds from the stores of
the ship as he was going to drive alone to Ahmedna.ga.r by night, though the real purpose was to
shoot himself. On receiving the revolver and six
cartridges, and put it inside a. brown envelope.
Then he drove his car
to
Abuja's
office,
~d not finding him there, he drove to Abuja's
flat, rang the door bell, and, when it was opened
by a servant, walked to Abuja's bed-room, went
into the bed-room and shut the door behind him.
He also carried with him the envelope containing
1961
K. M. JVa11a;,'ali
v.
Tht .~tde of
Alahar11shtra
Suhba nao J,
Jl/51
K. M. }(anorJali
••
TN .)tatt of
II a.\atashtrcs
Subbo Ra• J,
576 SUPREME COURT REPORTS [1962) SUPP.
the revolver. The acoueed saw the dcreased inside
the hen· room, c1\!lcri him a filthv swine and askerl
him whether he would marry Sylvia and look after
t.he children. The deceased retorted, "Am I to
marry every woman I sleep with ?" The accused
became enraged, put the envelope containing the
revolver on a cabnit nearbv, and threatened to
thrash the dece'lscd. The de
0ceased m 1de a sudden
move to grasp at the
envelope, when the
accused
whipped out his revolver and told
him to get back.
A struggle ensued between
the two and during that
struggle two shots
went off accidentally and hit Ahuja resulting
in his death. After the shooting the accused went
back to his car and drove it to the police station
where he surrendered himself. This is broadly,
omitting the detailR, the c&se of the defence.
It would be convenient to dispose of at the
outset the questions of law raised in this case.
Mr. G. S Pathak, learned counsel for the
accused, raised before us the following points :
(I) Under s. 307 of the Code of Criminal Procedure,
the High Court should decide whether a reference
mado by a Sessions Judge was competent only en
a perusal of the order of reference made to it and
it had no jurisdiction to consider the eviclon<'.e and
come to a conclusion whether the rE-ference was
eompP.tent or not. (2) Under s. 307(:1) of the said
Code, the High Court had no power to set aside
the verdict of a jury on the ground that there
were misdirections in thn charge me.de by the
Sessions Judge.
(3) l here were no misdirections at
all in the charge made by the Sessions Judge; and
indeed his charge was fair to the prosecution as
well to the accused.
( 4) The verdict of tht> jury
was not perverse .nd it was such that a reasonable
body of persons could arrivP- at it on thP evidence
placed before them. ( 5) In any view, the accused
shot at the decased under grave and sudden provocation, and therefore even if he had committed
(1) S.C.R.
SUPREME COURT REPORTS 5i7
an offence, it would not be murder but only culpable homicidti not amounting to mmder.
Mr. Pathak clab<>ratea his point under the
first heading thus : UnJer s. 307 of the Code of
Criminal Procedure, the High Court deals with the
reference in two stages. In the first stage, the
High Court has to consider, on the basis of the
referring order, whether a reasonable body of
persons could not have reached the conclusion
arrived at by the jury; and, if it is of the view
that such a body could have come to that opinion
the reference shall be rejected as incompetent. At
this stage, the High Court cannot travel beyond
tbe c1rdcr of reference, but shall confine itself only
to the reasons given by the Sessions· Judge.
If, on
a
consideration
of the said reasons,
it fo of the view that no reasonable body
of
persons could have come to that conclusion, it, will
then have to consider the entire evidence to ascertain whPther the verdict of the jury is unreasonable.
If the High Court holds that the verdict of the
jury is not unreasonable, in the case of a verdirt
of "not guilty", the High Court acquits the accused,
and in the case "here the verdict is one of "guilty"
it convicts the accused. In case the High Court
holds that the verdict of "not guilty", is unreasonable, it refers back the case to the Sessions Judge,
who convicts the accused; thereafter the a~cused
will have a right of appral wherein he can attack
the validity of his conviction on the ground that
there were misdirectionE in the charge of the jury.
So too, in the case of a verdict of "guilt)" by the
,jury, the High Court, if it holds that the verdict is
unreasonable, remits the matter to the Sessions
Judge, who acquits the accused, and the Stata, in
an <tppeal against that acquittal, may question the
eorrectness of the said acquittal on the ground that
the charge to the jury was vitiated by misdirections.
In short, the argument may be put in three propositions, namely, ( i) the High Court rejects the
K. M. /{ anaooti
v.
T1.e State of
Maharas%tra
Subba Rao J.
I
I
1961
K. Jl.1. Nanrtoati
v.
Tiu Sta11 of
Alaharashtra
Suhbll P.,,10 J.
578
SITPRE~m COURT REPORTS_(1962J SUPP.
reference as incompetent, if on the face of the
reference the verdfot of the j ir:v does not appear to
be uureason11.ble, (ii) if_the reference is competeut,
the High Court can consider the evidence to come
to a definite conclusion whether
the verdict is
unreasonable or not, and (iii) the High Court has
, no power under s. 307 of the Code of Criminal
Procedure to· set aside the verdict of the jury
on the ground that it is vitiated by misdirections in
the charge to the jury.
The question raised turns upon the construction of the relevant provisions of the Code of
Criminal Procedure. The said Code contains twu
fascicule of sections dealing_ with two \different
8itirntions. Under s. 268 of the Code, -"Alltrials
before a Court of Session shall be either by jury, or
by the Judge himself." Under s. 297 thereof: -
"In cases tried by jury, when the case for
the defence and the prosecutor's reply, if any,
are conduded, the_ Court shall proceed t0
charge the jury, summing up the evidence for
the prosecution and defence, and laying down
the law by which the jury are to be guided
"
. . . . . . . . . . . . . . . .. . .
Section :ms among other imposes a duty on a judge
to decide all questions of law arising in the course
of the trial, ancl especially all questions as to the
relevancy of facts which it is proposed to be
proved, and the admissibility of evidence or the
- propriety of questions asked by' or on behalf of
the parties, and to decide upon all matters of
fact which it is necessary to prove in order to
enable evidence of particular matter to be given.
It is the duty of the jury "to decide which view
of the facts is true and then to retnrn tho verdict
which under such view ought, according to the
directions of the Judge, to be returned." After the
charge to the jury, the jury retire to consirler their
verdict and; after due consideration, the foreman
of the jury informs the Judge what is their verdict
or what is the verdict of the majority of the jurors.
~
{!) S.C.R.
SUPRE.\fE COURT REPORTS
579
Where the Judge does not think it necee8ary to
disagree with the verdict of tho jurors or of the
majority of them, he give8 jm1gmont accordingly.
If the accused is acquitted, the Judge shall reeord
a verdict of acquittal ; if the accused is convicted,
the .Judge shall pass sentence on him according to
law. In the case of conviction, there is a right of
appenl under s. 410 of the Code, and in a case of
acquittal, under s. 417 of the Code, to the High
Court. Buts. 4i8 of the Code provides:
"(l) An appeal may lie on a matter of
fact as well as a matter of law except where
the trial was by jury, in which case the appeal
Bhall lie on a matter of law only."
Sub-section (2) thneof provides for a case of a
person sentenced to d,,ath, with which we are not
now concerned.
~·ection 42J confers certain powers
on an appellate Court in the matter of dispo_sing
of an appeal, strnh as calling for the record, hearing
of the pleaders, and passing appropriate orders
therein.
But sub-s. (2) of s. 42:l says :
"Nothing herein contained shall authorise
the Court to alter or reverse the verdict of the
jury, unless it is of opinion that such verdict is
erroneous owing .to a misdirection by the
Judge, or to a misunderstanding on the part
of the jury of the law as laid clown by him."
It may be noticed at this stage, as it will be relevant in considering one of the arguments raised in
this case, that sub-a. (2) does not confer any power
on an appellate court, but only saves the limitation
on the jurisdiction of an appellate court imposed
under s. 418 of the Code. It is, therefore, clear
that in an appeal against conviction or acquittal in
a jury trial, the said appeal is confined only to a
matter of law.
-t
The Corle of Criminal Procedure also provides
for a different situation. The Sessions Judge may
l96l
K. M. N anavati
._
TM Stot1 of
Moha1ash11a
8u6ba Rao J.
1961
/,". JI. 'lcH1av1ti
••
Tht ~ttTtt of
lt1ah4ra1hlra
580 SUPREME COURT REPORTS [1962) SUPP.
not agree with the verdict of the jurors or the
majority of them; and in th:i.t event s. 307 provides
fora machinery to meet that situation. As the
argument mninly turns upon the interpretation of
the proviRions of this section, it will be convenient
to read the relevant clauses thereof.
Section 307 : (I) If in any such case the
J u<lge disagreeR 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 iR
ncceRsarv for the ends ef justice to submit the
<'asc in respect of such accused person to the
High Court, he shall submit the case acror-
<lingly, recording the grom1ds of his opinion,
and, wlwn the verdict is one of acquittal,
slating the offence which he considers to have
hcen
committ~d, and in such case, if the
accused is further charged under the provisions
of section 310, shall proceed to try him c•n
sueh charge as if such verdict had been one
of eo1l\'iC"tion.
(3) In dealing with the case w submitted
the High Court may exercise any of the
powers which it may exercise on an appeal,
and subject thereto it shall, after considering
the entire evidence and after giving due
weight to the opinions of the Sessions Judge
and the jury, acquit or convict such accused
of any offence of which the jury could ha.ve
convicted
him upon
the charge framed
and placed before it; and, if it convicts
him, may pass such sentence a.s might have
been passed by the Court of Session.
This S'.,ction is a clear departure from tho English
law. There are good reasons for its enactment.
Trial by jury
outside the Presidency
Towns
was first introduced in the Code of Criminal
Procedure of 1861, and the verdict of the jury was,
{l) S.C.R. SUPREME COURT REPORTS
5Sl
subject to re-trial on certain events, final and
conclusive. This led to miscarriage of justice
through jurors returning erroneous verdicts due to
ignorance and inexperience. The working of the
system was reviewed in 1872, by a Committee
appointed for that purpose and on the basis of the
report of the said Committee, s. 262 was introduced
in the Code of 1872. l'nder that section, where
th.ire was difference of view between the jurors and
the judge, the Judge was empowered to refer the
case to the High Court in the ends of justice, and
the High Court dealt with the matter as an appeal.
But in 1882 the section was amended and under
the amended section the condition for reference was
that the High Court should differ from the jury
completely ; but in the Code of 1893 the section
was amended practically in terms as it now appears
in the Code. The history of the legislation shows
that the section was intended as a safeguard against
erroneous verdiots of inexperienced jurors anp also
indicates the clear ini;!Jntion of the Legislature to
confer on a High Court a separate jurisdfotion,
which for convenience may be described as "refer'lnC(l
jurisdiction". Section 307 of the Code of Crimin'l!
Procedure, while continuing the benefits of the jury
system to persons tried by a Court of Session, also
guards against any possible injustice, h1wing regard
to the conditions obtaining in India. It is, therefore clear that there is an essential difference between
the scope of the jurisdiction of the High Court in
disposing of an appeal against a conviction or
acquittal, as •.he case may be, in a jury trial, and
that in a case submitted by the Sessions Judge
when he differs from the verdict of the jury : in the
former the acceptance of the verdict of the jury by
the SessiOns Judge is considered to be sufficient
guarantee against its perversity and therefore an
appeal is provided only on questions of law, whereas in the latter the absence of such agreement
necessitated the conferment of a larger power on
1901
K. M. Nanavcti
Y,
TJi1 S1a1e of
Maharashtra
Sufba Roo J.
JKJ
1•. M . .iV01COt·ali
v.
r/11 Stott of
MohmOJiot,.
Suoba &. J.
582 SUPREME COURT REPORTS [l!iG2] SUPr.
the High Court in the matter c,f interfering with
the verdict of the jury.
Under s. 307(1 ) of the Code, the obligation
cast upon the SeBl'ions Judge to submit the case t:i
the High Court is made subject to two conditions,
namely, (1) the Judge shall disagret> with the
verdict of the jurors, and (2) he is clearly
of the opinion
that it is neceEsary in
the
ends of justice to submit the cabe to the
High Court. If the two conditions are complied
with, he shall submit the case, r"cording the
grounds of his opinion. The words "for the ends
of justice" are comprehensive, and coupled with
the words "is clearly of opinion", they give the
Judge a tliscretion to enable him to exercise his
power under different situations, the only criterion
being his clear opinion that the reference is in the
ends of justice. But the ,Judicial Committee, in
Ramanuyrah Sinyh v. King Emperar('), construed
the words "neceBB&ry for the ends of justice" and
laid down that the words mean that tht> Judge shall
be of the opinion that the verdict of the jury is one
which no reasonable body of men could have reached on the evidence. Having regard to that interpretation, it m1iy bf! held that the second condition for reference is that the Judge shall be clearly
of the opinion that the verdict is one which no
reasonable body of men could have reached on the
evidence. It follows that if a Judge dift'ers from
the jury and is clearly of such an opinion, he shall
submit the case to the High Court reeording the
grounds of his opinion. In that event, the said
reference is clearly competent. If on the other
hand, the ease ~ubmitted to the High Court does
not ex fuc:ie show that the said two conditions have
been complied with by the Judge, it is incompetent.
The question of competency of the reference does
not depend upon th" question whether the Judge
(I) (19'46) L. R. 173, J. A. !H, 182, IU6,
•
(l) 8.C.R.
SUPREME COURT REPORTS
583
is justified in differing from the jury or forming such
an opinion on the verdict of the jury. The argument th!tt though the Sessions Judge has complied
with the conditions necessary for making a refercn·
ce, the High Court shall reject the reference as
incompetent without going into the evidence if the
reasons given do not sustain the view ex]Jressed by
the Sessions Judge, is not supported by the provisions of sub-s. ( 1) of s. 307 of the Code. Hut it is
said that it is borne out of the decision of the
Judicial Committee in Ramanugran Singh's case(').
In that case the Judicial Committee relied upon the
words "ends of justice" and held that the verdict
was one which no reasonable body of men could
have reached on the evidence and further laid down
that the requirements of the ends of juotice must be
the determining factor both for the Sessions Judge
in making the reference and fur the High Court in
disposing of it. The Judicial Committee observed:
"In general, if the evidence is such that
it can properly support a
verdict either of
guilty or not guilty, according to the view
taken of .it by the trial court, and if the jury
take one view of the evidence and the judge
thinks that they shoud have taken the other,
the view of the jury must prevail, since they
are the judges of fact.
In such a case a
reference is not justified, and it is only by
accepting their view that the High Court can
give due weight to the opinion of the jury. If,
however, the High Court consider• that on the
evidence no reasonable body of men could
have reached the conclusion arrived 'l.t by the
jury, then the reference was justified and the
ends of justice require that the verdict be
disregarded."
'l'he Judicial Committee proceeded to state:
"In their Lordships' opinion had the High
Court approacheli the reference on the right
(I) (19<46) L. R, 73, LA. 174, 182, 186.
1961
K. M. Nanavflti
v. -
T/uSta'e of
Maharashtra
s .. oba &wJ.
11161
K. M, N anavati
••
Th1St.te of
MahartUhltu
8 .. HRaoJ.
584 SUPREME COURT REPOHTS [l!!ti2] SUPr.
lines and given due weight to the opinion of
the jury they would have been bc•und to hold
that the reference was not justified and that
the ends of justice did not require any inter·
ference with the verdict of the jury."
Emphasis is laid on the word "justified", and it is
argued that the High Court should reject the
reference as incompetent if the reasons given by the
Sessions Judge in the statement of case <lo not
support his view that it is necessary in the ends of
justice to refer the rase to tho High Comt. The
Judicial Committee does not lay down any such
proposition. There, the jury brought in a verdict
of not "guilty" under s. 302, Indian Penal Code.
The Sessions Judge differed from the jury and made
a. reference to the High Court. The High Court
accepted the reference a.ad convicted the accused
and sentenced him to transportation for life. The
Judicial Committee held, on the facts of that case,
that the High Court was not justified in the ends of
justice to interfere with the verdict of the jury.
They were not dealing with the question of compe·
tenoy of a reference but only with that of the
justification of the Sessions Judge in making the
reference, and the High Court in accepting it. It
was also not considering a case of any disposal of
the reference by the High Court on the basis of the
reasons given in the reference, but were dealing
with a case where the High Court on a consideration of the entire evidence accepted the reference
and the Judicial Committee held on the evidence
that there was no justification for the ends of justice
to accept it. This decision, therefore, has no bearing on the competency of a reference under
s. 307(1) of the Coae of Criminal Procedure.
Now, coming to sub-a. (3) of s. 307 c.f the
Code, it is in two parts. The first part says that
the High Cc.urt may exercise any of the powers
which it may exercise in an appeal. Undrr the
..
..
(1) S.C.k. SUPREME COURT kEPORTS
585
second part, after considering the entire evidenee
and after giving due weight to the opinions of the
Sessions Judge and the jury, the High Court shall
acquit or convict the accused.
These parts are
combined by the expression "and subject thereto".
The words "subject thereto" were added to the
section by an amendment in 1896. This expression
gave rise to conflict of opinion and it is conceded
that it lacKs clarity.