# MOSEB KAKA CHOWDHRY alias MOSEB CHOWDHRY AND ANOTHER v. THE STATE OF WEST BENGAL

- **Citation:** [1956] 1 S.C.R. 372
- **Court:** Supreme Court of India
- **Decided:** 1953-03-24
- **Case number:** special leave. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 15 of 1955
- **Bench:** Jagannadhadas, B. P. Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/moseb-kaka-chowdhry-alias-moseb-chowdhry-and-another-v-the-state-of-west-bengal-1315
- **Pages:** 11

## Headnote

J1<ry trial-Verdict of Jury-When Sessions Judge to accept and
to give reasons for accepting it-S. 307 Or. P.0.-Examination under
s. 342 Or. P.O. perfunctory-Prejudice-New point.
A Sessions Judge, even if he disagrees with the verdict of the
Jufy, must normally give effect to that verdict unless he is clearly
of opinion that no reasonable body of men could have given the
verdict which the Jury did.
Bamnugrah Singh v. Kin~·Emperor, ([1946] L.R. 73 LA. 174),
relied on.
A Sessions Judge need not record his reasons for accepting the
verdict of the Jury. In a case where a Judge in his charge to the
Jury, has clearly and definitely expressed himself for acquittal, it
would be desirable though not imperative, that he should give his
reasons why he changed his view a.nd accepted the verdict of the
Jury finding the accused guilty.
Even where the examination of the accused under s. 342 Cr.P.C.
is perfunctory the judgment cannot be set aside unless clear preju·
dice is shown.
Tara Singh's case, ([1951) S.C.R. 729), referred to.
K. O. Mathew and Others v. The State of Travancore·Oochin,
((1955] 2 S.C.R. 1057), relied on.
Prejudice cannot be presumed from the fact that the trial is by
a jury though that is a circumstance which rnay be ta.ken into considera.tion.
An argument which would, if accepted, necessitate a retrial,
ought to be put forward at the earliest stage and at any rate before
the High Court in appeal and cannot be entertained for the first time
in an appeal on special leave.

## Text

1956
April 18
372
SUPREME COURT REPORTS
(1956)
MOSEB KAKA CHOWDHRY alias MOSEB
CHOWDHRY AND ANOTHER
v.
THE STATE OF WEST BENGAL.
[JAGANNADHADAS and B. P. SINHA JJ.)
J1<ry trial-Verdict of Jury-When Sessions Judge to accept and
to give reasons for accepting it-S. 307 Or. P.0.-Examination under
s. 342 Or. P.O. perfunctory-Prejudice-New point.
A Sessions Judge, even if he disagrees with the verdict of the
Jufy, must normally give effect to that verdict unless he is clearly
of opinion that no reasonable body of men could have given the
verdict which the Jury did.
Bamnugrah Singh v. Kin~·Emperor, ([1946] L.R. 73 LA. 174),
relied on.
A Sessions Judge need not record his reasons for accepting the
verdict of the Jury. In a case where a Judge in his charge to the
Jury, has clearly and definitely expressed himself for acquittal, it
would be desirable though not imperative, that he should give his
reasons why he changed his view a.nd accepted the verdict of the
Jury finding the accused guilty.
Even where the examination of the accused under s. 342 Cr.P.C.
is perfunctory the judgment cannot be set aside unless clear preju·
dice is shown.
Tara Singh's case, ([1951) S.C.R. 729), referred to.
K. O. Mathew and Others v. The State of Travancore·Oochin,
((1955] 2 S.C.R. 1057), relied on.
Prejudice cannot be presumed from the fact that the trial is by
a jury though that is a circumstance which rnay be ta.ken into considera.tion.
An argument which would, if accepted, necessitate a retrial,
ought to be put forward at the earliest stage and at any rate before
the High Court in appeal and cannot be entertained for the first time
in an appeal on special leave.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 15 of 1955.
Appeal by special leave from the judgment and
order dated the 24th March, 1953 of the Calcutta High
Court in Criminal Appeal No. 94 of 1952 arising out
. of the Judgment and order dated the 22nd April 1952
S.C.R.
SUPREME COURT REPORTS
373
of the Court of Sessions Judge, Murshidabad in Sessions Trial No. 1 of 1952.
Jai Gopal Sethi, (0. F. Ali and P. K. Ghosh, with
him) for the appellants.
B. Sen, (I. N. Shroff, for P. K. Bose, with them)
for the respondent.
1956. April 18. The Judgment of the Court
was delivered by
JAGANNADHADAS J.-This is an appeal by special
leave against the judgment of the High Court of Calcutta confirming the conviction and sentence of each
of the two appellants before us, by the Sessions Judge
of Murshidabad. The appellants were tried on a charge
under section 302/34: of the Indian Penal Code by the
Sessions Judge with a jury. The jury returned a unanimous verdict of guilty against each under the first
part of section 304: read with section 34: of the Indian
Penal Code.
The learned Judge accepted the verdict
and convicted them accordingly and sentenced each
of the appellants to rigorous imprisonment for ten
years.
In order to appreciate the points raised before us,
it is desirable to give a brief account of the prosecution case.
The two appellants jointly made a
murderous assault on one Saurindra Gopal Roy at
about 6-30 p.m. on the 3rd November, 1951.
There
was, owing to litigation, previous enmity between
the deceased and the appellants. All of them belonged
to a village called Mirzapur which is within the police
station Beldanga, district Murshidabad. The deceased
along with two friends of his, of the same village,
examined as P.Ws. 1 and 2, attended a foot-ball
match that evening at Beldanga. The match was over
by 5 p.m. and all the three of them were returning
together to their village. In the course of the return
they were passing at about 6-30 p.m. through a field,
nearly half a mile a way from the village. The two
appellants each having a lathi and a Hashua (sickle)
in his hand, emerged from a bush nearby and rushed
towards the deceased and his companions. P.W. l
4U
1956
MosebKaka
Chowdhry alias
Moseb Chowdhry
and another
v.
The State of
West Bengal
1956
l'tloseb Kaka
Chowdhry alias
JYioseb Chowdhry
and anothe.r
v.
The State of
West Bengal
J agannadhadas J.
374
SUPREME COURT REPORTS
(1956]
was first struck with a lathi and thereupon both
P. Ws. 1 and 2 moved away to a distance. The appellants assaulted the deceased and inflicted on him
a number of serious injuries. The two companions
of the deceased, P.Ws. land 2, ran towards the village
and shouted for help whereupon a number of people
·from the village came and collected at the spot. Information was also carried to the son as well as to the
brother of the deceased. They also came on the scene.
The brother, by name Radhashyam, proceeded at
once to the Beldanga police station and lodged the
first information report at about 7-30 p.m. The police
officer came to the scene and recorded a statement
from the deceased who was then still alive. He was
thereafter taken to the hospital at Beldanga. At the
hospital the Medical Officer also took a statement
from him (Ex. 4). He died some time thereafter.
P.Ws. 1 and 2, the companions of the deceased,
were the only eye-witnesses to the murderous assault.
The prosecution relied also on certain statements said
to have been made by the deceased after the assault.
The deceased is said to have stated to P.W. 7 one of
the villagers who first came on the scene, after hearing the shouts of P. Ws. l and 2, that the two appellants were his assailants. A lit'tle later, when his son
and his brother, P. W. 3 came there, he is also said to
have stated to P.W. 3 that the two appellants were
the assailants. Accordingly the first information
report gave the names of the two appellants as the
assailants. Similar statements are said to have been
made by the deceased to the police officer when he
came on the spot and later to the Medical Officer when
he was taken to the hospital.
The evidence, therefore, in support of the prosecution case was mainly,
that of the two eye-witnesses, P.Ws. 1 and 2, and of
the four dying declarations, two of them oral and two
written.
There was considerable scope for criticism
about the evidence of the two eye-witnesses. The
evidence relating to the dying declarations was also
open to attack in view of the nature of the injuries
inflicted on the deceased. These included incised
wounds on the occipital region and a.n incised wound
-
S.C.R.
SUPREME COURT REPORTS
375
in the brain from out of which a piece of metal was
7956
removed on dissection. This, as was urged, indicated
MosebKaka
the likelihood of the deceased having lost his conChowdhry alias.
sciousness almost "immediately and hence the improMoseb Chowdhry
bability of any statements by the deceased. But the
and another
medical evidence on this point was indecisive. There
v.
can be no doubt however that the reliability of the
The State 01
.
'd
.
h ll
West Bengal
prosecution ev1 ence was open to ser10us c a enge in
many respects.
JagannadhadasJ.
But learned counsel for the appellants has not been
able to raise either before the High Court or before
us any objection to the verdict, on the ground of misdirection or non-direction, of a material nature, in
the charge to the jury by the Sessions Judge. On the
other hand, the charge brought out every point in
favour of the appellants and against the prosecution
evidence. It erred, if at all, in that the learned Judge
involved himself in a great deal of elaboration. The
only flaw in the charge which, learned counsel for the
appellants could attempt to make out, was that the
exposition therein of the legal concept underlying
section 34 of the Indian Penal Code was obscure and
that it would not have been correctly appreciated by
the jurors.
It may be that this could have been
expressed in more lucid terms. But we are unable to
find that there was any misdirection or non-direction
therein. Nor do we see any reason to think that the
jury has been misled. Thus there was no real attack
either in the High Court or here as against the learned
Judge's charge to the jury.
Accordingly, the only
points urged before us are the following.
I. The circumstances of the case and t.he nature
of the charge to the jury made it incumbent on the
learned Judge to disagree with the jury and to refer
the case to the High Court under section 307 of the
Code of Criminal Procedure.
2. In the alternative, the learned Sessions Judge
having expressed hil.'...self in his charge to the jury,
definitely for acquittal, he should not have accepted
its verdict, though unanimous, without giving satisfactory reasons for such acceptance.
3. The learned Judge having, in his charge speci-
1956
Moesb Kaka
Chowdhry alias
Moseb Chowdhry
and another
v.
The State of
West Bengal
376
SUPREME COURT REPORTS
[1956]
fically cautioned the jury against communal prejudice
in the following terms "your deliberations and verdiet should not be influenced by any communal considerations'', should have refused to accept the verdict as having been vitiated by communal bias.
It
may be stated that all the jurors were Hindus and
that the accused were both Muhammadans.
The
suggestion is that in view of the fact that the scene
Jagannadhadas J. of occurrence was near the border between West and
East Bengal, it should have been appreciated that
communal bias was, at the time, almost inevitable.
4.
There has been virtually no examination of the
accused by the Sessions Judge under section 342 of
the Code of Criminal Procedure and the trial has been
vitiated thereby.
In advancing the first two of the above contentions
learned counsel for the appellants assumes and asserts that the Sessions Judge in his charge to the
jury was unequivocally of the opinion that there was
no reliable evidence on which the conviction could
be based and that the appellants should be acquitted.
On this assumption, he urges that, when in the
circumstances the jury gave a unanimous verdict of
guilty, his obvious duty was either to express his disagreement with the verdict of the jury and refer the
whole case for the consideration of the High Court
under section 307 of the Code of Criminal Procedure,
or, at the least, to have placed on record his reasons
why in spite of his clear opinion against the prosecution case, he did not consider it necessary to disagree
from the verdict of the jury. In order to substantiate
this point of view, learned counsel took us through
various portions of the charge to the jury and we
have ourselves perused carefully the entirety of it.
As already stated, the learned Judge undoubtedly
pointed out in.his charge all the weaknesses of the
prosecution evidence in great detail. It is also likely
that he was inclined for an acquittal. But we are not
satisfied that he came to a definite and positive conclusion that there should be acquittal.
While pointing out the weakness of the prosecution evidence with
a leaning against its reliability he has not specifically
-
S.C.R.
SUPREME COURT REPORTS
377
1956
rejected every important item of the prosecution evidence.
It was only in some places that he stated
Moseb [{aka
categorically that he would not accept a particular Chowdhry alias
item of evidence and would advise the jurors to reject Moseb Chou:dhry
it. In other places, while pointing out the infirmities
and another
of the evidence, he was not so categorical and posiv.
tive, as to what his own opinion on that item of eviThe State of
f
West Bengal
dence was. For instance, out o the two eye-witnesses,
__
P. W s. 1 and 2, the learned Judge said, so far as P. W. Jagannadhadas J.
2 is concerned, as follows:
"Personally speaking I am not satisfied with the
evidence of recognition of the accused persons as the
assailants of Sourindra Gopal furnished by P. W. 2,
Satyapada.
You will be advised, gentlemen, not to
rely upon the evidence of P.W. 2".
As regards the evidence of the other eye-witness,
P.W. 1, however he summed it up as follows:
"You should take a comprehensive view of all
matters and then decide whether you should act upon
the evidence of recognition of the accused persons as
the assailants of Sourindra furnished by P.W. 1,
Bhupati".
There was similar difference in the expression of his
opinions with reference to the evidence of the dying
declarations of the deceased. It may be recalled that
the evidence of the oral dying declarations is of statements to P.W. 7, Phani, and P.W. 3, Radhashyam.
The evidence of statement to P. W. 7 was given by
a number of witnesses, viz. P.Ws. 6, 7, 8, 9, 10, 11,
12 and 13. Out of these so far as the evidence of P. W.
9 is concerned, the learned Judge specifically stated
as follows:
"I should tell you that you should not believe
P. W. 9 when he stated on being questioned by Phani,
Sourindra mentioned Moseb and Sattar as his assailants".
But he did not rule out the evidence of the others on
this item in the same manner. Then again, when he
dealt with the question whether the slip of paper,
"Ex. ~. is genuine the learned Judge noticed that the
said paper was shown to have been taken from the
medical officer P.W. 17 into the possession of the In-
1956
l'.foseb Kaka
Chowdhry alias
Moseb Choivdhry
and another
v.
The State of
West Bengal
378
SUPREME COURT REPORTS
(1956)
vestigating Officer, P.W. 35, about a month later and
commented on it as follows:
"Personally speaking I see no reasonable explanation as to why the I. 0. should not have seized
Ex. 4 from P. W. 17 immediately after it was recorded,
if it was recorded on 3rd November, 1951, and sent it
to the Magistrate forthwith".
All the same, the learned Judge also remarked thus:
Jagannadhadas J.
"You will consider very seriously whether you
have any reason to disbelieve the evidence of P. Ws.
17, 32 and 33".
P.Ws. 32 and 33 are witnesses who spoke to the
statement of the deceased said to have been taken by
the Doctor, P.W. 17.
Taking the charge to the jury,
therefore, comprehensively we are unable to find that
the learned Judge rejected the prosecution evidence
and arrived at a clear and categorical conclusion in
·in his own mind that the appellants were not guilty.
We are, therefore, una hie to accept the assumption of
learned counsel for the appellants that the Judge
agreed with the unanimous verdict of the jury against
his own personal conviction, as to the guilt of the
accused. It appears to us, therefore, that there is no
foundation, as a fact, for the argument that the
learned Judge should have made a reference to the
High Court under section 307 of the Code of Criminal
Procedure or that, in any case, he should have placed
on record his reasons for agreeing with the verdict
of the jury notwithstanding his own personal opinion
to the contrary.
Assuming however that the charge to the jury in
this case can be read as being indicative of a definite
opinion reached by the Sessions Judge in favour of
the appellants, it does not follow that merely on that
account he is obliged to make a reference under section 307 of the Code of Criminal Procedure. What
is required under that section is not merely disagreement with the verdict of the jury but the additional
factor that the learned Sessions Judge "is clearly of
opinion that it is necessary for the ends of justice to
submit the case to the High Court". It is now wellsettled, since the decision of the Privy Council in
S.C.R.
SUPREME COURT REPORTS
379
Ramnugrah Singh v. King-Emperor(1) that under section 307 of the Code of Criminal Procedure a Sessions
1956
Moseb Kaka
Judge, even if he disagrees with the verdict of the Chowdhry alias
jury must normally give effect to that verdict unless Moseb Chowdhry
be is prepared to hold the further and clear opinion
and another
"that no reasonable body of men could have given
v.
the verdict which the jury did". We are certainly
The State 01
West Bengal
not prepared to say that the present case satisfies
that test or that the charge to the jury indicated any JagannadhadasJ.
such clear conclusion. Indeed it is to be noticed that
on intimation by the jury of its unanimous verdict,
the learned Judge has recorded that he "agreed' with
and accepted the verdict". We have no doubt that
it was perfectly competent for him to do so. Learned
counsel urges that this acceptance is a judicial act
and that having regard to the whole tenor of the
Judge's charge to the jury, he was at least under a
duty to himself and to the appellate court to record
his reasons for acceptance of the verdict of the jury.
We are unable to agree with this contention. It may
be that in a case where a Judge in his charge to the
jury has clearly and definitely expressed himself for
acquittal, it would be very desirable, though not
imperative, that he should give his reasons why he
changed his view and accepted the verdict of the
jury. But we can find no basis for any such contention in this case.
The two further contentions that remain which
are enumerated above as 3 and 4, were not raised
before the High Court.
We are reluctant to allow
any such contentions to be raised on special leave.
The point relating to the possibility of the verdict
having been the result of bias has no serious basis. It
appears to us that the learned Sessions Judge had no
justification in this case for imagining the possibility
of such bias and giving a warning to the jury in this
behalf. This is not a case which arose out of any
incident involving communal tension. The likelihood
of any such bias is not to be assumed merely from
the fact of the appellants being Muhammadans and
the jurors being Hindus. Nor is it right to take it
(1) (1946] L.R. 78 I.A. 174.
380
SUPREME COURT REPORTS
[1956)
1956
for granted merely from the fact of proximity of the
place of trial to the border between West and East
Moseb J( aka
B
Chowdhry alias
engal. On the other hand, it is not without some
Moseb Chowdilry relevance that when the jury was empanelled at the
and another
commencement of the trial, there was absolutely no
v.
such objection taken. Nor was the right of challenge
The State 01
to the jurors exercised.
lVest Bengal
L
d
l f
h
earne
counse
or t e appellants has very
Jagannadhadas J. strenuously argued before us, the point relating to
the inadequacy of the examination of the appellants
under section 342 of the Code of Criminal Procedure.
Now, it is true that the examination in this case was
absolutely perfunctory. The only questions put to
each of the accused in the Sessions Court, and the
answers thereto were the following:
"Q. You have heard the charges made and the
evidence adduced against you. Now say, what is
your defence? What have you got to say?
A.
I am innocent.
Q.
Will you say anything more?
A.
No.
Q.
Will you adduce any evidence in defence?
A.
No."
There can be no doubt that this is very inadequate
compliance with the salutary provisions of section 342
of the Code of Criminal Procedure. It is regrettable
that there has occurred in this case such a serious
lacuna in procedure notwithstanding repeated insistence of this Court, in various decisions commencing
Tara Singh's case(') on a due and fair compliance
with the terms of section 342 of the Code of Criminal
Procedure. But it is also well recognised that a judgment is not to be set aside merely by reason of inadequate compliance with section 342 of the Code of
Criminal Procedure. It is settled that clear prejudice
must be shown. This court has clarified the position,
in relation to cases where accused is represented by
counsel at the trial and in appeal. It is up to the
accused or his counsel in such cases to satisfy the
Court that such inadequate examination has resulted
in miscarriage of justice. This Court in its judgment
(1) [1951) S.C.R. 729.
S.C.R.
SUPREME COURT REPORTS
381
in the latest case on this matter, viz. K. 0. Mathew
1956
and Others v. The State of Travancore-Oochin(1) (deliMoseb Kaka
vered on the 15th December, 1955) has laid down
Chowdhry alias
that "if the counsel was unable to say that his client Moseb Chou·dhry
had in fact been prejudiced and if all that he could
and another
urge was that there was a possibility of prejudice,
v.
that was not enough". Learned counsel could not,
The State of
before us, make out any clear prejudice. All that
West Bengal
learned counsel for the appellants urges is, that this JagannadhadasJ.
might be so in a case where the trial was with the
assessors and the Judge's view on the evidence was
the main determining factor. But he contends that
the same would not be the case where the trial is with
the aid of a jury. Learned counsel urges that a full
and clear questioning in a jury trial does not serve
the mere purpose of enabling the accused to put forward his defence or offer his explanation, which may
be considered along with the entire evidence in the
case. The jury would, he suggests also, have the
opportunity of being impressed one way or the other
by the method and the manner of the accused, when
giving the explanation and answering the questions
and that the same might turn the scale. Learned
counsel urges, therefore, that the non-examination or
inadequate examination under section 342 of the Code
of Criminal Procedure in a jury trial must be presumed to cause prejudice and that a conviction in a
jury trial should be set aside and retrial ordered, if
there is no adequate examination under section 342
of the Code of Criminal Procedure. We are not prepared to accept this contention as a matter of law.
The question of prejudice is ultimately on*e of inference from all the facts and circumstances of each
case. The fact of the trial being with the jury may
possibly also be an additional circumstance for consideration in an appropriate case. But we see no
reason to think that in the present case this would
have made any difference.
We are, therefore, not
prepared to accept the argument of the learned
counsel for the appellants in this behalf. In any ca:se,
an argument of this kind which would, if accepted,
(1) [1955] 2 S.O.R. 1057.
50
1956
MosebKaka
Chowd/lry alias
Moseb Chowdhry
and another
v.
The State of
West Bengat
J agannadhada$ J.
1956
April 24
382
SUPREME COURT REPORTS
[1956]
necessitate a retrial, is one that ought to be put forward at the earliest stage and at any rate at the time
of the regular appeal in the High Court. This cannot
be entertained for the first time in an appeal on special leave.
For all the above reasons this appeal is dismissed.
LA WREN CE JOACHIM JOSEPH D'SOUZA
v.
THE STATE OF BOMBAY.
[S. R. DAS, C.J., JAGANNADHADAS, VENKATARAMA
AYYAR, B. P. SINHA and JAFER IMAM JJ.]
Preventive Detention-Espionage activity-GrO'Unds whether
vague-Vagueness due to non-disclosure of facts in public interest--
Whether vitiates order-Claim of privileg.-When slumld be oommunicated-Mala fides.
Appellant was detained under s. S(l)(a)(i) of the Preventive
Detention Act, Act IV of 1950 on the gronnds that with the financial help given by the Portuguese anthorities he was carrying on
espionage on their behalf with the help of underground workers
and that he was also collecting intelligence about the security arrangements on the border area and was ma.king suoh intelligence available
to the Portuguese authorities. Appellant made no application to the
Government for further particulars.
Held, that in these circumstances and having regard to the fact
that what is alleged is espionage activity, the grounds could not be
considered to be vague.
In answer to the objection in the writ application before the
High Court that the grounds were not specific and that no pa.rticular of the alleged activities of the appellant were given the Under
Secretary to the Government in his affidavit claimed privilege under
Art. 22(6) of the Constitution.
Held, that the right of the detenue to be furnished particulars
is subject to the limitation under Art. 22(6).
Hence even if the
grounds are vague due to the reason that facts cannot be disclosed
in the public interest, the order of detention cannot be challenged
~n the ground of such vagueness.
The necessity of communicating the decision to claim privilege
under Art. 22(6) would arise only when the detenue asks for parti-