JUDGMENT Daniels, J.
1. These applications arises out of a case under Sections 147, 366 and 457 of the Indian Penal Code which was tried by a jury in the Court of the Assistant Sessions Judge of Allahabad. The prosecution case was that the accused broke into the house of the complainant, Mt. Dhiraji, and forcibly carried away her daughter, Mt. Sartaji, in order that she might be married to the accused Basdeo. The defence was that the girl was lawfully married to Basdeo on the night in question and was taken away peacefully along with the bridal party.
2. The jury unanimously found the accused not guilty on the charge under Section 457, but convicted them by a majority of 4 to 1 oh the charges under Sections 366 and 147. The Assistant Sessions Judge accepted the verdict of the majority and passed sentence on eight of the accused accordingly. The remaining accused, Mt. Akasi, was released on probation of good conduct under Sections 562 of the Code of Criminal Procedure. The Sessions Judge on appeal has set aside the verdict of the jury on the ground of non-direction amounting to misdirection and has directed are-trial before himself. Against this order three applications in revision have been filed. Revision application No. 747 of 1926 filed by the complainant, Mt. Dhiraji, and No. 71 of 1926 filed by the Government Advocate on behalf of the Crown to attack the learned Judge's order on the ground: first, that there was no misdirection: and, secondly, that the learned Judge had no power to direct a re-trial in his own Court. Revision No. 12 of 1926 was filed on behalf of five of the accused on the ground that it was open to the learned Judge to quash the conviction and acquit the accused, and that the Judge was wrong in holding that in case of misdirection the only course open to him was to order a re-trial.
3. The learned Judge finds, and it is not disputed by any party, that the summing up, so far as it goes, contains an accurate summary of the evidence given on both sides. The learned Judge sums up this matter by saying:
Now counsel for the appellants have to admit that there is in this summing up no assertion of fact unsupported by evidence and no erroneous exposition of the law applicable to the facts alleged. The learned Counsel for the accused contend that in effect the jury were not directed at all, and that non-direction amounts to misdirection. The first question that I have to answer in this appeal is whether there was misdirection in this sense as the appellants contend.
4. The omissions found by the Judge to constitute misdirection are:
(1) That the Assistant Sessions Judge did not draw the attention of the jury to the contents of the first report or to the fact that it gave a version substantially different from that given in evidence. (2) That he did not draw the attention of the jury to the fact that, according to the evidence of the sub-Inspector, the witnesses had made before that officer statements which contradicted their evidence in Court. (3) That he omitted to call the attention of the jury to the main arguments urged by the prosecution and the defence respectively. (4) That the summing up was confined to the evidence for the prosecution and did not include the cross-examination.
5. The first three objections are those which are pressed before me as constituting misdirection. The fourth objection is not one of substance in view of the admission of the Judge himself that nothing of importance was elicited in the cross-examination. If nothing of importance was elicited, there was clearly nothing which required comment.
6. Failure to direct the attention of the jury to the salient points in the evidence may undoubtedly amount to misdirection. Ample authority for this may be found in any commentary on the Criminal Procedure Code. The summing up must give a fair summary of the evidence on both sides, and it cannot do this unless it includes a reference to all evidence which is of vital importance in the case. The summing up must also be an intelligent summing up, and it is the Judge's duty to call the jury's attention to any flagrant contradictions in the evidence. He will at the same time naturally recall to the jury any explanation of the contradiction which has been suggested and leave it to them to decide on its adequacy. The Judge's duty is limited to summing up the evidence and to instructing the jury on the law which applies to the case. He has not cast on him the duty of recapitulating the arguments used by counsel on both sides. But a Judge who knows his business will naturally in the case of this summing up remand the jury of the main lines of attack and defence adopted by counsel. More than this is not required of him. He is not required to repeat, parrot-like, the arguments of counsel on both sides, and failure to mention a particular argument used by counsel will not amount to misdirection.
7. An appellate Court will naturally be cautions in treating an omission in the heads of the charge to the jury as amounting to misdirection for two reasons. In the first place, in order to constitute misdirection the point omitted const be of such importance that an omission to refer to it renders the summing up unfair. In second place, the Judge is not required to make a verbal transcript of his summing up. It is only the heads of the charge to the jury which he is required to record. The heads of charge must indicate the matters on which he proceeded, but many details which find a place in the charge will not find a place in the record: vide Eknath Sahay v. King-Emperor AIR 1916 Pat 236. In this case the charge was delivered to the jury in Urdu and the heads of the charge are a summary made in English.
8. The first report in this case differs from the evidence given in Court in this important particular that, according to the report, there was no house-breaking. The girl was first decoyed out of the house by Mt. Akasi and then carried off by her and the other accused. The fact that only one of the witnesses named in the first report was examined is of less importance, because the report itself says that many other persons were present.
9. The Sub-Inspector investigated the case but did not chalan it. It was taken up on a complaint by Mt. Dhiraji and committed to the Sessions., The Sub-Inspector, when examined as a witness called by the Court, stated that so far as he remembered, Mt. Sartaji had first stated that she had been married to Basdeo, but afterwards denied her statement. According to the evidence of this witness Har Prasad, the prosecution witness named in the report, gave a different account of how he came to be present on the spot from that given in his evidence and so far, as the Sub-Inspector remembered, said that he did not recognize the accused at the time of the occurrence. The Sub-Inspector's evidence contains also other statements which, if accepted, were damaging to the prosecution. The prosecution case was that the Sub-Inspector wanted to burke the case and that he was not telling the truth on these points and should not be believed.
10. It was clearly the duty of the Assistant Sessions Judge to call the attention of the jury both to the discrepancy between the first report and the case put forward in Court and to the statement made by the Sub-Inspector and to leave them to decide whether they accepted the prosecution case as reliable. The charge to the jury should have given some indication that this was done. The heads of charge merely mention that a report was made but contain not a word to suggest that the attention of the jury was drawn to its contents. Concerning the Sub-Inspector the Assistant Sessions Judge says that his evidence can only be used for two purposes: (1) To show that Mt. Sartaji was taken from the house of Basdeo. (2) To scrutinize the evidence of the prosecution witnesses in the light of the statements they made to the Sub-Inspector.
11. There is nothing to indicate that the attention of the jury was directed to the contradiction between the statements alleged to have been made to the Sub-Inspector and the evidence of the witnesses, or to the fact that the jury would have to decide whether to believe the Sub-Inspector or the prosecution witnesses. The account of the purposes for which the Sub-Inspector's evidence could be used is not altogether complete. Anything which ha personally law or did in the course of his investigation was relevant, e.g., that ha found indications at Basdeo's house of a marriage having been performed and that no evidence was put before him to show that "tika ceremony had been performed between Sartaji and Gaya Dat as alleged by the prosecution.
12. It must also be taken that the Assistant Sessions Judge did not bring these points to the notice of the jury. At the conclusion of the argument in reply on the complainant's revision it was faintly suggested that they might have been mentioned though the heads of charge did not show this. If so, this would have been placed in the forefront of Mt. Dhiraji's revision, whereas that revision was based on the ground that though these facts were not mentioned by the Assistant Sessions Judge they had been fully discussed by the defence counsel. The case was argued in the Sessions Judge's Court from first to last on the assumption that the Assistant Sessions Judge's summing up contained no mention of these points.
13. The next point to consider is one which the Sessions Judges has wholly overlooked. Section 537(d) is applicable to cases of misdirection, and before a verdict can be set aside on this ground it must be found that the misdirection has occasioned a failure of justice. This has not been interpreted to mean that the appellate Court must find before setting aside a verdict that the accused was entitled to an acquittal on the evidence. If this were so there could be no object in ordering a new trial as has been done in many reported cases of misdirection. It means that there must be a reasonable ground for apprehending that the misdirection may have affected the jury's verdict; in other words, that the jury might have arrived at a different verdict if they had been rightly directed. In the present case it would seem that the jury were alive to the discrepancy between the first report and the evidence, since they acquitted the accused on the charge of house-breaking. It is, however, impossible to say that their verdict may not have been affected by the omission to draw their attention to the significance of the Sub-Inspector's evidence.
14. It is urged for the Crown and for the complainant that the effect of the Sub-Inspector's evidence had been strenuously pressed on the jury by defence counsel, as no doubt was the case, and that therefore they did not give their verdict in ignorance of it. On the other hand, this was a case in which the defence evidence was called and the prosecution had the last word, and it is impossible to say that the verdict may not have been affected by the Judge's omission to deal with this important portion of the evidence. As the learned Sessions Judge says, the evidence, if believed, was fatal to the prosecution case, and it should have been put to the jury that they had to decide whether to believe or reject it. I notice further that the heads of charge do not contain the customary caution to the jury, that if they feel any doubt whether the prosecution or the defence version was true, they should acquit. I find, therefore, that the Sessions Judge was justified in ordering a retrial.
15. I need not discuss at length the question raised by the Sessions Judge whether it is open to the appellate Court to acquit the accused if it sets aside a verdict on the ground of misdirection. In my judgment the law clearly gives this power to an appellate Court. It is true that by Section 418 an appeal in a case tried by jury lies only on a ground of law, but where the appeal has been entertained the powers of the appellate Court are those laid down in Section 423. At the same time as a matter of practice the proper course in such cases as these is to direct a re-trial. It is only in special circumstances, as where the accused have been harassed by repeated trials or where the evidence is so clearly insufficient or incredible that no jury could reasonably convict that an appellate Court would be justified in acquitting.
16. The last question for decision is the legality of the Sessions Judge's order directing are-trial before himself. Here again Section 423 is clear. The power given by that section is to direct a re-trial by a Court of competent jurisdiction subordinate to the appellate Court. The learned Judge admits that his order is contrary to the provisions of Section 423(1)(b). He thinks that the Legislature must have overlooked the possibility of an appeal from the Assistant Sessions Judge to the Sessions Judge and therefore he has taken it on himself to do what he thinks the Legislature ought to have done. The learned Sessions Judge was not justified in violating a clear provision of law on any speculation of his own as to the intention of the Legislature. The learned Judge might possibly have arrived at the result he desired by directing a re-trial before the Assistant Sessions Judge and then transferring the case to his own file under Section 528. In saying that there was no other Court at Allahabad before which a re-trial might have been ordered, the learned Judge has overlooked Notification No. 3958/11-46, dated September 18, 1925, by which powers of an Assistant Sessions Judge were conferred on the Subordinate Judge.
17. I cannot, however, find any sufficient reason why the re-trial should not be in the same Court as the original trial. The verdict is the verdict of the jury and not of the Judge, and the Assistant Sessions Judge will have an opportunity as the re-trial of making good the defects in his original summing up. I therefore modify the order of the learned Sessions Judge by directing that the re-trial be in the Court of the Assistant Sessions Judge B. Gauri Prasad before a fresh jury.