Chattarji, J.:— Before dealing with the merits of this case I should like to dispose of an objection of an unusual character that was taken by the learned advocate on behalf of the accused. The hearing of this case was concluded on the 9th instant and judgment was reserved. Unfortunately on the 10th instant news was received of the lamentable death of Sir Courtney-Terrell, C.J which took place in England. On the 11th the learned advocate for the accused raised the objection that there being no Chief Justice, the High Court was not properly constituted and this Bench ceased to have jurisdiction to pronounce judgment in the case. This objection was based on the fact that Cl. 2 of the Letters Patent by which this High Court was created provides that it shall consist of a Chief Justice and six other Judges. After notice to the Crown through the Government Pleader we heard this objection on the 12th instant. At the close of the hearing we announced our decision that the objection was over, ruled and we intimated that we would give our reasons in the judgment in the case itself.

2. This High Court was established by Letters Patent bearing date 9th February 1916 in exercise of the powers reserved to His Majesty under Section 113 of the Government of India Act, 1915. Cl. 2 of the said Letters Patent determines the constitution of this High Court by declaring that it shall consist of a Chief Justice and six other Judges. The same Clause also mentions the names of the first Chief Justice and six other Judges. The Letters Patent however does not provide how the succeeding Judges are to be appointed or how vacancies in the office of the Chief Justice and other Judges are to be filled up. The reason is obvious, because these matters were covered by the provisions of the Government of India Act then in force, namely the Act of 1915. This Act has since been replaced by the Act of 1935 and it is by this latter Act that we are now governed. Sec. 220 of the Act of 1985 which substantially corresponds to S. 101 of the Act of 1915 relates to the constitution of the High Court. In Cl. 1 of the Section, it is enacted that every High Court shall consist of a Chief Justice and such other Judges as His Majesty may from time to time deem it necessary to appoint. The subsequent clauses prescribe the mode of appointment of Judges. Provisions for filling up vacancies in the office of the Chief Justice and other Judges are made in S. 222 of the Act of 1935 (corresponding to Sec. 105 of the Act of 1915). Clause (1) of Section 222 runs as follows:

If the office of Chief Justice of a High Court becomes vacant, or if any such Chief Justice is by reason of absence, or for any reason, unable to perform the duties of his office, those duties shall until some person appointed by his Majesty to the vacant office has entered on the duties thereof, or until the Chief justice has resumed his duties, as the case may be, be performed by such one of the other Judges of the Court as the Governor-General may in his discretion think fit to appoint for the purpose.

3. Thus the contingency of the office of Chief Justice remaining vacant for some time is expressly recognized and provided for. In the case of a vacancy caused by death, some time must necessarily elapse before a new appointment is made. It will be preposterous to hold that during that interval there is no properly constituted High Court. The vacancy in any office implies that the office exists. Vacancy must be distinguished from abolition of the office. When a Chief Justice dies the office does not his with him but still continues. It only remains vacant until it is filled up. In my opinion, so long as the office is not abolished the constitution remains unbroken and unchanged. The only effect of the vacancy in the office of Chief Justice, so long as it continues, is that there will be nobody to perform his duties unless the Governor-General appoints some one of the other Judges to do the same. No such difficulty arises in the present case because we are now sitting in the Vacation Bench. We are not required to do any of the duties of the Chief Justice. We have heard the case and our jurisdiction to pass judgment cannot, on any intelligible principle, be questioned.

4. Now I come to the merits of the case. It is a reference under Section 307 of the Cr PC, by the learned Additional Sessions Judge of Patna who, disagreeing with the jurors' verdict of “not guilty”, has found two of the accused, namely Sohrai Koeri and Pathlu Mahto, guilty under Ss. 147 and 326/149, I.P.C These two, together with eight others, were charged with various offences in respect of an occurrence which took place on 19th October 1937, resulting in the death of two persons named Yasub and Hamza who were brothers. The occurrence was due to a dispute over some lands, bearing plots Nos. 1699 and 1700 in village Karai, between Ali Akbar (P.W 11) and the accused Sohrai. The deceased Yasub was a gomashta of Ali Akbar. The prosecution case is as follows: Ali Akbar and others who are the proprietors of village Karai, within which the disputed plots lie, purchased the lands by two sale deeds (Ex. 5 and Ex. 6) dated 9th December 1918. Ex. 5 which was in respect of plot No. 1700 only was executed by one Budhu, son of Raudi, who was recorded in respect thereof in the last survey records. Ex. 6 which was in respect of both the plots Nos. 1699 and 1700 together with some other lands was executed by Dahu for self and as guardian of his nephews including the accused Sohrai. Two sale deeds were obtained in respect of plot No. 1700 apparently to avoid any dispute as to title. Since the purchase, Ali Akbar and his co-sharers were in possession of the plots Nos. 1699 and 1700. Subsequently in 1919 there was a private partition amongst them by which Ali Akbar alone got the plots. He was accordingly in exclusive possession of those plots. On 17th October 1937, that is two days before the occurrence, there was a kisan sabha at Masaurhi which is eight miles from village Karai. On 18th October Sohrai with a number of people wrongfully ploughed up the disputed fields and sowed sarso seeds thereon. On 19th October (the date of the occurrence) Ali Akbar's people including the deceased went to have the disputed fields ploughed and while this was being done, Sohrai came with a large mob armed with garasas, bhalas and lathis. They wanted to dispossess Ali Akbar's people and when the latter remonstrated, Sohrai and two others of his party, named Mangar Gope and Jadu Gope, struok Yasub and Hamza with bhala and garasa with the result that both of them died. Some other persons on Ali Akbar's side were also injured. The same day at about 4 P.M the Sub. Inspector of Masaurhi reached the spot on receiving information of an impending not from the chaukidar. He then came to the house of Ali Akbar and there he recorded the first information report on the statement of Ali Azim who had been to the spot at the time of the occurrence on behalf of Ali Akbar and received injuries from some of the accused persons. The Sub. Inspector after investigation sent up ten persons including Sohrai and Pathlu and all of them were committed to the Court of Session. Sohrai was charged under Ss. 302, 302/149 and 148, I.P.C, and Pathlu under Ss. 302/149 and S. 148, I.P.C

5. The defence is that the disputed plots belong to Sohrai and his uncle, that the kabala (Ex. 6) executed by Dahu was a mere paper transaction and that the lands were all along in possession of Sohrai. Sohrai had sown sarso on the disputed) plots on 18th October and on the next day in the morning Ali Akbar with a mobarmed with guns and other deadly weapons went to the disputed fields to take forcible possession. On seeing the mob people of the basti came to the help of Sohrai and eventually there was a fight between Ali Akbar's party and the villagers in course-of which Yasub and Hamza were killed and the accused persons also received injuries. In fact Pathlu had two wounds on two fingers one of which, as told by the-doctor, was grievous.

6. The case was tried with the help of nine jurors. Their verdict was that the accused persons were not guilty. The learned Additional Sessions Judge accepted their verdict with regard to eight of the accused and acquitted them; but as regards the accused Sohrai and Pathlu he did not agree with their verdict and accordingly referred the case to this Court with the finding that they are both guilty under Ss. 147 and 326/149. His view is that the prosecution witnesses who prove the actual attack by Sohrai on Yasub and Hamza with a bhala are not disinterested persons and therefore it is not safe to hold that Sohrai actually committed the murder of Yasub and Hamza or was armed with a bhala. He also finds that there is no evidence that Pathlu was armed with a deadly weapon. He has however come to the definite finding that both Sohrai and Pathlu were members of the unlawful assembly of which the common object was to dispossess Ali Akbar from the disputed plots and having regard to the nature of the weapons carried by some of its members they must have known that grievous hurt was likely to be committed. He accordingly finds that both Sohrai and Pathlu are guilty under Ss. 147 and 326/149, I.P.C That there was an occurrence is undisputed. The main question is whether Ali Akbar or Sohrai was in possession of the disputed plots. (His Lordship after considering the evidence proceeded.) I fully agree with the learned-Additional Sessions Judge when he says-that the ploughing of the field that was done by Sohrai on 18th October was a stray act of trespass on his part.

7. This being the finding on the question, of possession, it necessarily follows that Sohrai and his party were not justified in going to the disputed plots on 19th October to interfere with the possession off Ali Akbar. The evidence on behalf of the prosecution clearly establishes that on that morning Ali Akbar had sent his ploughman Jadunandan (P.W 10) with some others to plough the fields and that when they were doing so Sohrai with a large mob came there with the object of enforcing his supposed right over the lands.

8. It is strenuously contended by Mr. Avadesh Nandan Sahay, the learned advocate appearing on Sohrai's behalf, that the learned Additional Sessions Judge in his charge to the jury having directed their attention to the question of possession and the jury having returned a verdict of “not guilty”, this Court should not lightly interfere with that verdict. On a reference under the provisions of Section 307 of the Cr PC, the High Court may exercise any of the powers which it may exercise on an appeal and shall consider the entire evidence on record and at the same time should give due weight to the opinions of the Sessions Judge and the jury. After considering the evidence and giving due weight to the opinions of the Sessions Judge and also the jury, I am clearly of opinion that the view taken by the learned Judge is quite correct. He has very carefully analysed the evidence and has given very cogent reasons for his finding. I should do well to quote from his judgment the following passage in which he sums up his finding:

In spite of the unsatisfactory nature of the prosecution evidence, the outstanding facts proved in the case are that violence was committed by an unlawful assembly consisting of Sohrai, Pathlu and others, the common object of the assembly being to forcibly oust Ali Akbar, that during the not Yasub and Hamza were killed, that Azim, Afzal and Saheb Ali received simple hurts and accused Pathlu grievous hurt and that the members of that unlawful assembly were armed with bhala, garasa and that some members of the unlawfal assembly caused the death of Yasub and Hamza and inflicted wounds on Saheb Ali, Azim and Afzal. In view of the common object of the unlawful assembly and the nature of weapons carried by some members of it, I am of opinion that the members of the unlawful assembly must have known that grievous hurt was likely to be committed.

9. It is contended on behalf of Sohrai that his party had a right of private defence, firstly, to prevent the mischief that was being done by Ali Akbar's party to the Sarse that had been sown on the previous day by Sochrai and secondly to protect themselves from the attack by Ali Akbar's party which had already fired a gun as found by the learned Sessions Judge. As regards the first ground, I have already held that the sowing of sarso by Sohrai on 18th October was an act of trespass on his part. When therefore on the 19th morning Ali Akbar who was in rightful possession sent his people to plough the lands it cannot be said that they were doing any mischief to Sohrai. As regards the second ground it is quite clear that Ali Akbar's party did not fire the gun at anybody. There is no suggestion that the gun shot was aimed at anybody in Sohrai's party or that it injured anybody. It seems that a gun was fired only with a view to scare away Sohrai's party. They were however not deterred in any way but proceeded to the disputed fields and committed rioting. In the circumstances, I do not think the plea of private defence is available to Sohrai. In my opinion Sohrai was a member of the unlawful assembly and some members of the assembly inflicted the fatal blows on Yasub and Hamza. The question then arises as to what offences Sohrai can be said to be guilty of. In this matter I would accept the well-considered finding of the learned Additional Sessions Judge and hold that Sohrai is guilty under Sections 147 and 326/149, I.P.C

10. As regards Pathlu however different considerations arise. He was not in any way interested in the land. There is no satisfactory evidence that he was armed with any weapon. He was undoubtedly in the mob as he himself received injuries on two fingers; but beyond the fact that he was a member of the mob there is hardly any evidence to show that he shared the object of the unlawful assembly. It might be that he joined the party and went to the field as a mere sight-seer. I do not feel inclined to accept the learned Additional Sessions Judge's finding so far as Pathlu is concerned. I would accordingly acquit him-Then there remains the question of sentence to be passed on Sohrai. Having regard to the fact that there was a free fight between the two parties I think the ends of justice would be met if he is sentenced to five years' rigorous imprisonment under Ss. 326/149, I.P.C No separate sentence need be passed under Sec. 147, I.P.C I would accordingly accept the reference, convict the accused Sohrai under Ss. 147 and 326/149 and sentence him to five years' rigorous imprisonment under Sections 326/149, I.P.C The reference is discharged with regard to Pathlu who is acquitted.

Manohar Lall, J.:— I agree. I wish to deal with an objection which was raised on behalf of the learned advocate for the accused as to the competency of this Bench to dispose of this reference. This reference was heard by us on two days, namely on 6th and 9th May when judgment was reserved for our consideration. On 10th May 1938, news having been received of the lamentable death of Sir Courtney-Terrell, C.J of this Court, the High Court was closed as a mark of respect to the memory of the deceased. On 11th May 1938, the learned advocate for the accused intimated to us in Court that he was raising an objection that, in view of the death of the Chief Justice on the night of 9th May and no Chief Justice having been appointed yet, the present Bench had become functus officio and therefore not competent to pass any order in the Jury Reference. We intimated that, on notice to the Crown, this objection would be heard on 12th May at 11 A.M Accordingly on that day, the learned Advocate-General appearing on behalf of the Crown, this matter was argued: at the conclusion of the debate we gave out our views that we would overrule this objection and that the reasons would be given in the judgment that will be pronounced in the Jury Reference. In my opinion, this objection is wholly unsound and is based upon a misunderstanding of the provisions of the Government of India Act, 1935, and of the Letters Patent of this Court.

11. The Patna High Court was constituted by Letters Patent bearing date 19th of February 1916. Cl. 2 of the Letters Patent deals with the constitution of this Court and also names the first Chief Justice and the puisne Judges who were appointed to take their seats. The constitution of this Court was ordered to consist of a Chief Justice and six other Judges for the time being. Various clauses in the Letters Patent define the jurisdiction which the Judges of this Court are authorized to exercise. It is significant that the first forty out of the total forty-one clauses of the Letters Patent do not deal with the case of a vacancy in the office of the Chief Justice or of the other Judges: the last Cl. 41, provides that all the provisions of the Letters Patent are subject to the legislative power of the Governor. General in Legislative Council and, of the Governor. General in Council under the Government of India Act, 1915 (this is now replaced by the Government of India Act, 1935). The situation which arises upon the happening of a vacancy is distinctly dealt with by Section 222 of the present Government of India Act. Sub s. 1 thereof enacts that if the office of the Chief Justice of the High Court becomes vacant…. those duties (i.e the duties of the Chief Justice) shall, until some person appointed by His Majesty to the vacant office has entered on the duties thereof…. be performed by such one of the other Judges of the Court as the Governor-General may in his discretion think fit to appoint for the purpose.

12. To my mind, it is obvious that the provisions just quoted adequately deal with the situation which has arisen in the present case. The duties of the Chief Justice can only be performed by either a new Chief Justice who on being appointed enters upon the duties of his office or by such other Judge as the Governor. General may think fit to appoint. But this does not affect the jurisdiction of the other Judges in the least; they are as heretofore unable to perform the duties of the Chief Justice. It was also admitted and indeed it is obvious that the present Bench is not performing in the vacation any of the duties which had to be performed by the Chief Justice. The duties that we are performing are the duties which are assigned to Vacation Judges as provided in Chap. 2 of the Patna High Court Rules.

13. It is to be noticed that the Legislature has not for obvious reasons of convenience and practicability fixed any time limit within which the Governor-General shall appoint another Judge to perform the duties of the Chief Justice or within which His Majesty may appoint a new Chief Justice in cases where a vacancy has arisen permanently. Necessarily, this appointment must take some time, an hour, a day, a week, a month or a year, and the time during which such appointment is to be made is necessarily left to the discretion of the Governor-General or of His Majesty as the case may be and they ordinarily are the best judges of the reasonableness of the time which should be taken to make this appointment. It is conceivable that the Governor-General or His Majesty may take, for some reasons, inordinate time in making the appointment, but the result thereof will only be that the duties of the Chief Justice cannot be performed in that period, and not that the constitution of the High Court will break clown because the office of the Chief Justice does not become abolished by the death of the Chief Justice or by a Sate filling up of the vacancy in that office. It is also to be observed that even if the Governor-General does make an appointment in the case of death, the office of the Chief Justice remains vacant till it is filled up by the order of His Majesty. All that S. 222 requires, as indicated above, is that the duties of the Chief Justice shall be performed by another Judge but not that the office of the Chief Justice shall be filled up by the Governor. General: in other words, as I pointed out in the course of the argument, the appointment of a Judge to perform the duties of the Chief Justice is not the same thing as the appointment of a Chief Justice. The death of the Chief Justice does not destroy the office of the Chief Justice but only creates a vacancy therein and the manner in which the vacancy is to be filled up and how in the interval the interim duties of the Chief Justice are to be performed are clearly and accurately laid down in the Statute. I therefore have no hesitation in deciding that the death of the Chief Justice does not affect our jurisdiction in the least in passing orders in the Jury Reference or in any other case which is within our jurisdiction as provided by the law and the Rules of the High Court. The case law on the point is not very voluminous and may be conveniently dealt with now. It is curious that all the reported cases are from the neighbouring province. In 9 All 6251 the question arose in somewhat peculiar circumstances. The contention raised was that the Allahabad High Court, at the time of the objection, did not consist of the Chief Justice and five puisne Judges which was the constitution provided in the Letters Patent, the number of puisne Judges who were then working were less than five. It was therefore argued that the High Court was improperly Constituted and that the jurisdiction of the High Court had ceased until another Judge was appointed, whether permanent or officiating, to make up the number — five of the Puisne Judges as provided in the Letters Patent. The learned Judges of the Allahabad High Court had no difficulty whatsoever in overruling this objection. Mahmud, J. made these weighty observations in the course of the argument:

The fact that His Majesty has omitted for several years to fill of a vacancy does not alter the constitution of the Court or make it illegal nor does it amount to altering Cl. 2 of the Letters Patent. If your argument is correct, supposing a Judge was to the whole working of the Court would be brought to a standstill until his successor could be appointed.

14. A little later on he observed that even if the Grown is bound to fill up a vacancy within a specified time and acts illegally in not filling it up it dose not follow that the constitution of the Court is vitiated so as to deprive the remaining Judges of all other jurisdiction.

15. I respectfully agree with these observations. In 16 All 1362 a question arose on the construction of the words “upon the happening of a vacancy in the office of any other Judge” in S. 7 of the Statute 24 and 25 Vic., Chap. 104; the learned Judges decided that these words must be construed as meaning that the power conferred by S. 7, namely to fill up the vacancy, must be exercised within a reasonable time, that is to say, a practicable time, after the happening of a vacancy and they observed that the power conferred by this Section cannot be held in suspense for several years and then be legally exercised. In a case that went up to the Privy Council a similar objection was taken as to the late appointment of Burkitt, J. and it was boldly argued that the effect was that the decree passed by the Bench composed of Burkitt, J. was void; but the Judicial Committee in dealing with the objection in 25 IA 543 at p. 77 made this observation in the following words of Lord Hobhouse:

It is alleged that the decree of the High Court is void, because one of the Judges, Mr. Burkitt, was not properly appointed……Their Lordships understand that the appointment is questioned on the ground that it was not made immediately upon, or within a reasonable time after the occurrence of the vacancy which it supplied. Their Lordships cannot discover any ground for the objection. Under the High Courts Act the Lieutenant-Governor of the North-Western Provinces has power to appoint an acting Judge upon the happening of a vacancy among the puisne Judges of the Court. No limit of time is mentioned within which the appointment should be made. That is left to the discretion of the Lieutenant-Governor, and it is not competent to a Court of law to invent a restriction not contemplated by the Legislature.

16. In my opinion these words of Lord Hobhouse apply with great force to the situation which has arisen here. Even if it is assumed that it is obligatory upon the Governor-General to appoint some Judge of this Court to perform the duties of the Chief Justice on his death, the time within which he is required to appoint a Judge is left entirely to his discretion. The delay in making the appoinment in such a case does not alter the constitution of this Court nor does the promptitude in appointing a Judge to perform the duties of the Chief Justice fill up the vacancy which, as already pointed out, can only be done by His Majesty. In AIR 1935 All 3224 a Division Bench of that Court had to construe the words of Section 101, Clause 4 of the then Government of India Act, which provided that at least one third of the Judges of the High Court shall be barristers. It was argued that in the appointment of one of the puisne Judges of that Court (who was a barrister Judge) as the Chief Justice of the Lahore High Court (and no barrister Judge having been appointed in his place the result was that the number of barrister Judges of that High Court became less than the statutory requirement of one-third) the constitution of the Allahabad High Court came to a standstill and the other Judges including the Chief Justice became incompetent to perform any judicial work. The learned Judges pointed out:

Bat this does not mean that if on account of certain reasons a vacancy occurs the other Judges of the High Court shall be deemed incompetent to carry on the work of the High Court till the vacancy has been filled up. For reasons which may occur without any previous intimation, for example, if a barrister Judge or a civilian Judge happens to the suddenly, there is bound to be a vacancy and, if the argument of Mr. Baleshwari Prasad be good, the other Judges cannot work legally till the vacancy has been filled up. Now it will take some time for the local Government to secure a suitable appointment. If the argument of Mr. Baleshwari Prasad had been sound, we should have expected some provision in the Government of India Act, which should have said that the High Court should not function till the appointment had been made.

17. With respect I adopt this reasoning as correct and applying it to the facts of the present case I have no hesitation whatsoever in overruling the contention, that on the death of Sir Courtney-Terrell, C.J of this High Court on 7th May 1938, and communicated to us on 10th May 1938, the present Bench have been rendered incompetent to carry on their judicial work and pass orders in the Jury Reference.

B.D/R.K

18. Order accordingly.