# Pa•Mlal Bitifraj v. Unum of l•di<> Blragwali]

- **Citation:** [1957] 1 S.C.R. 273
- **Court:** Supreme Court of India
- **Decided:** 1957
- **Case number:** ·: Criminal Appeal No. 104 of 1955
- **Bench:** Bhagwati, B. P. Sinha, J. K. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pa-mlal-bitifraj-v-unum-of-l-di-blragwali-1339
- **Pages:** 7

## Headnote

Reference-fury trial-fudge disagreeing
with
the
verdictProcedure-Duty of counsel-High Cou1·t-lf can
accept
majority
verdict without considering the entire evidence-Supreme Courtlf should adopt the procedure-Cude of Criminal Procedure (Act
V of 1898), as ame~dt:d by Act XXVI of 1955, s. 307.
·
The appellal'lts
were charged under
ss. 435
and 436 of the
Indian Penal Code and were tried by a jury, who returned a
~ajority
~erdict
?f guil.ty.
The
Assistant Sessions
Judge
disagreed with the said verdict and made a reference to the. High
Court.
At the hearing of the reference the counsel for the appellants
only contended that the charge to the jury was defective, and did
not place the entire evidence before the Judges, - who only considered the
objections
urged,
and nothing
more,
and held the
1956
Pa•Mlal Bitifraj
v.
Unum of l•di<>
Blragwali].
1957
January 3(}.
1957
Rotan Rai
·v.
Stak -0/ Bihar
274
. SUPREME COURT REPORTS
[1957]
reference to be incompetent and found the appellants guilty . and
convicted them.
·
Held, that in a reference under s. 307 of the Code of Criminal
Procedure it
\Vas
the
duty
of counsel
to place,
and -it was
incumbent
on the High Court to consider, the entire evidence and
the charge as framed and placed before the jury and to come to
its own conclusion, after giving due weight to the opiniOn of the
trial
Judge· and- the ve_rdict of the jury,-
~nd to acquit or convict
the accused of the offences of which the jury could have conYicted
or acquitted him.
It_ was wrong of the High Court to pass
judg~ent without co~sidering the entire evidence.
It
is
not
proper
for
the
Supreme
Court
to
adopt the
procedure
of
considering
the
entire
evidence
and come to
a
conclusion
which according to the provisions
Of s. 307(3) of the
Code of Criminal Procedure the High Court should have done.
Akhlakali Hayatalli v. The State of Bombay, (1954) S.C.R. 435
and
Ramanugrah
Singh v. The Emperor, A.l.R. 1946
P.C. 151,
referred to.
CRIMINAL
APPELLATE
JURISDICTION ·:
Criminal
Appeal No. 104 of 1955.
Appeal by special leave . from
the judgment and
order dated September 9, 1953, of the Patna High
Court in Jury Reference No. 1 of 1952 arising out of
the Reference made on February 16, 1952, by the
Assistant Sessions Judge, 2nd Court, Chapra, in connection with Sessions Trial No. 81 of 1951.
s: P. Verma, for the appellants Nos. 2 and 3.
B. K. Saran and R. C. Prasad, for the respondent.
1957. January 30. The Judgment of the Court was
delivered by
BHAGWATI J.-The appellants Nos. 2 . and 3, who
are
the surviving appellants
after
the deat)i of
appellant No. 1 during the pendency of this appeal,
were charged with having committed offences. under
ss. 435 and 436 -0£ the Indian Penal Code and were
tried by the Second Assistant Sessions Judge of Saran,
Chapra, with the aid of a jury. The jury returned a
majority verdict that both of them were guilty of the
offences under those sections. The Assistant Sessions
Judge disagreed with the said verdict and made a
zeference to the High Court of Judicature at Patna
S.C.R.
SUPREME COURT REPORTS
275
under s. 307 of the Code of Criminal Procedure. The
said reference was heard by a Division Bench of that
High Court. The learned judges of the High Court
overruled
the contentions
which were urged before
them in regard to the charge to the jury being defective
and
further held that the reference was, in the
circumstances, not competent. They, however, without
anything more accepted the majority verdict and held
the appellants guilty of the offences under ss. 435 and
436 of the Indian Penal Code and sentenced them to
six months' rigorous imprisonment each. The appeltants obtained from this Court special leave to appeal
under Art. 136 of the Constitution and hence this
appeal.
The facts leading up to this appeal may be shortly
stated as
follows :-There was a dispute between the
parties as to title to plot No. llOO of village Rampur,
Tel}grahi. One Kailash Rai claimed to be the owner
of that plot and also claimed to be in

## Text

S.C,R.
SUPREME COURT REPORTS
1J3
rejoinder, we presume that such facilities will continue
to be afforded to them in the future and the inconvcmence
and
harassment which
would otherwise be
caused to
them will be
avoided. A humane and
considerate administration of the relevant provisions
of the Income-tax Act would go a long way in allaying
the apprehensions of the assessees and if that is done
in the true spirit, no· assessee will be in a position to
charge the Revenue with administering the provisions
of the Act with "an evil eye and unequal hand".·
We have, therefore, come to the conclusion that
there is
no . substance
in these petitions
and. they
should be dismissed with costs. There will be, however, one set of costs between respondents in each of
the . petitions . and one set of costs in each group of
these petitions, viz., (1) Petitions Nos. 97 & 97-A of
1956,
(2) Petitions Nos. 44/56 and 85/56, (3) Petitions
Nos. 86/56,
87 /56, 88/56,
111/56, 112/56 and 158/56,
(4) Petitions Nos. 211 to 215 of 1956, and (5) Petitions
Nos. 225 to 229 of 1956.
Petitions dismissed.
RATAN RAI
ti,
ST ATE OF BIHAR
[BHAGWATI, B. P. SINHA and J. K. KAPUR JJ.]
Reference-fury trial-fudge disagreeing
with
the
verdictProcedure-Duty of counsel-High Cou1·t-lf can
accept
majority
verdict without considering the entire evidence-Supreme Courtlf should adopt the procedure-Cude of Criminal Procedure (Act
V of 1898), as ame~dt:d by Act XXVI of 1955, s. 307.
·
The appellal'lts
were charged under
ss. 435
and 436 of the
Indian Penal Code and were tried by a jury, who returned a
~ajority
~erdict
?f guil.ty.
The
Assistant Sessions
Judge
disagreed with the said verdict and made a reference to the. High
Court.
At the hearing of the reference the counsel for the appellants
only contended that the charge to the jury was defective, and did
not place the entire evidence before the Judges, - who only considered the
objections
urged,
and nothing
more,
and held the
1956
Pa•Mlal Bitifraj
v.
Unum of l•di<>
Blragwali].
1957
January 3(}.
1957
Rotan Rai
·v.
Stak -0/ Bihar
274
. SUPREME COURT REPORTS
[1957]
reference to be incompetent and found the appellants guilty . and
convicted them.
·
Held, that in a reference under s. 307 of the Code of Criminal
Procedure it
\Vas
the
duty
of counsel
to place,
and -it was
incumbent
on the High Court to consider, the entire evidence and
the charge as framed and placed before the jury and to come to
its own conclusion, after giving due weight to the opiniOn of the
trial
Judge· and- the ve_rdict of the jury,-
~nd to acquit or convict
the accused of the offences of which the jury could have conYicted
or acquitted him.
It_ was wrong of the High Court to pass
judg~ent without co~sidering the entire evidence.
It
is
not
proper
for
the
Supreme
Court
to
adopt the
procedure
of
considering
the
entire
evidence
and come to
a
conclusion
which according to the provisions
Of s. 307(3) of the
Code of Criminal Procedure the High Court should have done.
Akhlakali Hayatalli v. The State of Bombay, (1954) S.C.R. 435
and
Ramanugrah
Singh v. The Emperor, A.l.R. 1946
P.C. 151,
referred to.
CRIMINAL
APPELLATE
JURISDICTION ·:
Criminal
Appeal No. 104 of 1955.
Appeal by special leave . from
the judgment and
order dated September 9, 1953, of the Patna High
Court in Jury Reference No. 1 of 1952 arising out of
the Reference made on February 16, 1952, by the
Assistant Sessions Judge, 2nd Court, Chapra, in connection with Sessions Trial No. 81 of 1951.
s: P. Verma, for the appellants Nos. 2 and 3.
B. K. Saran and R. C. Prasad, for the respondent.
1957. January 30. The Judgment of the Court was
delivered by
BHAGWATI J.-The appellants Nos. 2 . and 3, who
are
the surviving appellants
after
the deat)i of
appellant No. 1 during the pendency of this appeal,
were charged with having committed offences. under
ss. 435 and 436 -0£ the Indian Penal Code and were
tried by the Second Assistant Sessions Judge of Saran,
Chapra, with the aid of a jury. The jury returned a
majority verdict that both of them were guilty of the
offences under those sections. The Assistant Sessions
Judge disagreed with the said verdict and made a
zeference to the High Court of Judicature at Patna
S.C.R.
SUPREME COURT REPORTS
275
under s. 307 of the Code of Criminal Procedure. The
said reference was heard by a Division Bench of that
High Court. The learned judges of the High Court
overruled
the contentions
which were urged before
them in regard to the charge to the jury being defective
and
further held that the reference was, in the
circumstances, not competent. They, however, without
anything more accepted the majority verdict and held
the appellants guilty of the offences under ss. 435 and
436 of the Indian Penal Code and sentenced them to
six months' rigorous imprisonment each. The appeltants obtained from this Court special leave to appeal
under Art. 136 of the Constitution and hence this
appeal.
The facts leading up to this appeal may be shortly
stated as
follows :-There was a dispute between the
parties as to title to plot No. llOO of village Rampur,
Tel}grahi. One Kailash Rai claimed to be the owner
of that plot and also claimed to be in possession of a
Palani standing in a portion of that plot as also of a
Punjaul, i.e., a haystack in its vicinity. There had
been proceedings under s. 144 of the Code of Criminal
Procedure in regard to this area leading up to a title
suit being T.S. No. 58/8 of 1948/50 filed by Kailash
Rai against the appellants in regard to the same. A
decree had been passed on December 16, 1950, in that
title suit dismissing the claim of Kailash Rai. An
appeal had been filed by Kailash Rai against that
decree and that appeal was pending at the date of the
occurrence.
On
March 4,
1951, Kailash Rai was
sitting in the Palani and at about 3 to 4 p.m. a mob
consisting of about 100 to 125 persons including the
appellants all armed with lathis, bhallas and pharsas
came to the Palani and began to demolish. the
same.
Kailash Rai remonstrated and the deceased ·appellant
No. 1 ordered that the Palani should be set on fire.
The appellant No. 2 thereupon set fire to the Palani
with a match stick and the appellant No. ·3 set fire to
the Punjaul. The first information report
of this
occurrence was lodged at Gopalganj Police Station
at 8 p.m. the same night. The officer in charge of
Gopalganj Police
Station investigated
the
case
and
19sr
Rotan Rai
v.
State of Bihar
Bhagwati J.
i9S7
Rolan Roi
v.
$iott •f ~iluw
Bhagwati].
l76
SUPREME COURT REPORTS
f1957]
challaned the appellants charging them with having
committed offences under ss. 435 and 436 of the Indian
Penal Code.
The Committing Court found a prima facie case
made out against the appellants and sent them up for
trial by the Assistant Sessions Judge, Second Court,
Chapra, who tried them by a jury. The jury returned
a majoritv verdict of guilty against the appellants.
The Assistant Sessions Judge, however, disagreed with
that verdict and made a reference to the High Court
stating in the letter of reference that on the evidence
recorded before him the appellants had been in possession of the Palani and the Punjaul but were dispossessed
of the same some time prior to the passing of the
decree in the title suit on December 16, 1950, and were
therefore
justified in taking steps
for
recovery
of
possession thereof from Kailash Rai on March 4, 1951,
and if in that process the appellants set fire to the
Palani and the Punjaul they were only destroying
their own property and were not guilty of the offence
of committing mischief by fire as alleged by the prosecution.
The Assistant Sessions Judge tried to analyse
the working of the minds of the jury in arriving at the
verdict which they did and though he agreed with the
alleged finding of fact reached by the jury in regard to
the possession of the Palani and the Punjaul, disagreed
with the law as allegedly applied by the jury and
therefore disagreed with the majority verdict.
When the reference was heard before the High Court,
the counsel for the appellants only contended that the
charge addressed by the Assistant Sessions Judge to
the jury was defective and he did not invite the High
Court, as he should have done, to consider the entire
evidence and to acquit or convict the appellants of the
offences of which the jury could have
convicted them
upon the charges framed and placed before it, after
giving due weight to the opinions
of the learned
Sessions , Judge and the jury as required by s. 307(3) of
the. Code of Criminal Procedure. The High Court,
therefore, only considered the obiections which had
been urged by the learned counsel for the appellants
. before it in regard to the charge being defective and
S.C.R.
SUPREME COURT REPORTS
277
overruled them,
accepted the majority
venlict,
convicted the appellants and sentenced them as abm e.
We are of opinion that in so doing the High Court
was clearly in error and acted in violation of the provisions of s. 307(3) of the Code of Criminal Procedure.
Section 307(3) provides:-
"In dealing with the case so 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 tlie
jury, acquit or convict such accused of any offence of
wiuch the jury could have convicted him upon
th~
charge framed and placed before it; and, if it convics
him, may pass such sentence
as might
have
bern
passed by the Court of Sessions."
We had occasion
to consider
this
prov!S!on
in
Akhlakali Hayatalli v. The State of Br>mbay (1 ) where we
approved of the following observations of their Lordships of the Privy Council in Ramanugrah Singh v. The
Emperor ( 2 ):
. "The powers of the High Court in dealing with
the reference are contained in sub-section (3). It may
exercise any of the powers which it might exercise
upon an appeal, and this includes the power to call
fresh evidence conferred by s. 428. The Court must
consider the whole case and give due weight to the
opinions of the
Sessions Judge and jury,
and
then
acquit or
convict
the
accused. In their
Lordships'
view, the paramount consideration in the High Court
must be whether the ends of justice require that the
verdict of the jury should be set aside. 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 should 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 onlv
by accepting their view that the High Court can give
<lue weight to the opinion of the jury. If, however.
(1) f1954] S.C.R. 435, 442.
(2) A.I.R. 1946 P.C. 151, 154.
1957
Rolan Rai
v.
Stal1 of Bihar
Bhagwali ].
1956
Ralan Rai
v.
Slate of Bikar
BhagwatiJ.
278
SUPREME COURT REPORTS
[1957]
the High Court considers that upon the evidence no
reasonable body of men could have reached the conclusion arrived at by the jury, then the reference was
justified and the ends of justice required that the verdict be disregarded."
This was pronounced by us to be the correct method
of approach in a reference under s. 307 of the Code of
Criminal Procedure. It was incumbent on the High
Court when the reference was heard by it to consider
the entire evidence and come to its own conclusion
whether the evidence was such that it could properly
supJl9rt · the verdict of guilty against the appellants.
If the · High Court came
to the conclusion
that the
evidence was such that it was possible for the jury to
take the view
that it did
even though
the judge _
thought that they should have taken another view the
reference would not have been justified and the High
Court should have accepted the opinion of the jury.
If the High Court was however of opinion upon the
evidence that no reasonable body of men could have
reached the_ conclusion arrived at by the jury the reference would have been quite justified and the ends of
justice required that the verdict should be disregarded.
The High Court, however, only considered the arguments in regard to the defect in the charge to the jury
addressed
before it by the
learned counsel for
the
appellants
and did not consider
the entire
evidence
which was on the record before it. In not having done
so, we are clearly of opinion that it violated the provisions of s. 307(3) of the Code of Criminal Procedure.
We are accordingly of opinion that the judgment of
the High Court accepting the majority verdict and
convicting
the
appellants and
sentencing them
as
above without
considering the entire
evidence
was
clearly wrong and the conviction of the appellants and
the sentences passed upon them should be set aside.
We. •were invited by learned counsel for the parties
appearing before us to consider the entire evidence for
ourselves and come to the conclusion which, according
to the provisions of s. 307(3) of the Code of Criminal
Procedure, the High Court should have done. We do
S.C.R.
SUPREME COURT REPORTS
279
not think
that that is the proper procedure to adopt
and we therefore · allow the appeal, and remand this
matter to the High Court to act in accord.ance with
the provisions of s. 307(3) of the Code of Criminal
Procedure and deal with the same in accordance with
law. The appellants will continue on the same bail as
before.
Appeal allowed.
THE STATE OF BIHAR
tJ.
RAM NARESH PANDEY
(With Connected Appeal)
[JAGANNADHADAS,
JAFER
lMMAM and
GovINDA
MENON JJ.]
c,.iminal
latl'-Proseetttion-Application
for
withdrawal
by
Pubiic Prosecutor-Consent
of
Court-Ftmdio11 of the
Court in
giving such consent--Case t1·iable by a Court of Session-Whether
appiic111io11
for
ll'ithdrawal does not lie in the committal stage-
'Tria/', 'judgment', Meaning of-Code of
Criminal Procedure,
1898 (.let V of 1898), s. 494.
Hy s .. 494 of the Code of Criminal
Procedure,
1898: "Any
Public Prosecutor
may; with
the
consent of the Court, in cases
tried by jury before
the return of the Ye1dict,
and in other cases
before the judgment
i~ pronounced, withdraw from
the
prosecution o( any person
either
generally
or in respect of any one or
more of the offences for which he is tried ; and upon such withdrawal.-( a) if it is made before a charge has
been framed, the
accused shall be discharged in respect of such offence or offences ;
(h) if it is made after a charge h1s been framed. or when under
this Code no charge is required, he shall be acquitted in respect of
such offence or offences."
The prosecution of M. and others was
bunched on the first
information of the first respondent,
and
when the
matter was
pending before the Magistrate in the committal stage and before
any evidence was actually
taken,
an application
for
the
withdrawal of M. from
the
prosecution
wa.s
made by
the
Public
Prosecutor under s. 494 of the Code of Criminal Procedure on the
ground that "on the evidence aYailable it would
not be just and
expedient to proceed with the prosecution of M.'' The Magistrate
was of the opinion tha~ there Was
no reason
to withhold the
consent that was applied for
and accordingly
he discharged the
accused. This order was upheld by
the Sessions Judge, but on
4-100 S. C. lndia/59
1957
1--
Ratan Rai
v.
State of Bihar
Bhagwatij.
1957
January 31.