1. This is a reference by the Sessions Judge of Darbhanga, under section 438 of the Code of Criminal Procedure, recommending that the convictions and sentences passed upon the petitioners be set aside, With the petitioners many others were convicted. The petitioners received non-appealable sentences and the others received appealable sentences. Of the accused convicted, those who had received appealable sentences appealed before the Sessions Judge and the petitioners filed an application in revision under section 435, of the Code for recommendation to this Court. The learned Sessions Judge held that the case led by the prosecution was not proved and set aside the conviction and sentences as against those who had received appealable sentences. He has now referred the case of those who had received non-appealable sentences. The reasons for this recommendation are those contained in the judgment delivered in the appeals by the other accused persons.
2. I have carefully considered the evidence in the case and the judgment, and I agree with the view taken by the Court below and hold that the convictions of the present petitioners must also be set aside.
3. The reference is opposed by the learned Assistant Government Advocate. He contends that the Court below was wrong in setting aside the conviction and in holding that the prosecution case was not proved. I had, therefore, to go into the merits of the case in order to satisfy myself whether the learned Judge had committed an error in his finding by taking a perverse view of the evidence in the case. I have also considered the arguments addressed by the learned Assistant Government Advocate, with the result that I agree with the view taken by the learned Sessions Judge, though it is possible that in some respects the learned Judge has been hypercritical.
4. But the reference discloses the anomaly pointed out by me in the case of Pheku Jha v. Emperor(1); if I had differed with the view taken by the learned Sessions Judge upon the evidence in that case the result would have been that the conviction of the petitioners would have been upheld. Whereas the convictions of those who had received appealable sentences and had taken more serious part in the occurrence would have been set aside. The anomaly would have been still graver, for the order in the reference upholding the conviction may have been passed, as in the present case, after the term allowed for the Government to move and present an appeal against the order of acquittal passed by the Court below.
5. In the present case the anomaly would have been still more serious, for the learned Assistant Government Advocate intimated that the Government intended to appeal against the order of acquittal passed by the learned Sessions Judge. I am, therefore, confirmed in my view taken of law on the subject in the aforesaid case, that the learned Sessions Judge himself, when dealing with the appeal of persons who had received appealable sentences was competent to deal with the applications made by persona who had received non-appealable sentences. In my view, he was dealing with the whole case though the case came to him upon appeal by some of the accused persons. This used to be the practice, particularly in the District of Muzafferpur from where this case has come. The practice has been referred to in some of the cases which I quoted in the aforesaid case of Pheku Jha v. Emperor() That appears to me to be the right procedure.
6. The reference is accepted and convictions and sentences passed upon the petitioners are set aside.
7. Reference accepted.