Varma, J.This is a reference by the Sessions Judge of Bhagalpur against; the verdict of the jury u/s 395, I.P.C. Thirteen people were put on their trial and charges under Sections 395, 402 and 395-120-B, I.P.C., were framed against them. The charge u/s 395 was triable by jury and the other two charges were triable with the aid of assessors. At the trial the jury returned a unanimous verdict of not guilty against all the accused except two in whose case the verdict of not guilty was by a majority.

2. Eleven of the accused were found not guilty by the assessors unanimously but Ramkishun and Lachman were found not guilty by a majority of four to one. The learned Sessions Judge has accepted the opinion of the assessors as well as the verdict of the jury with regard to two of the accused, Hitna Gangota and Bhola Gangota and he has acquitted them of charges under Sections 395, 402 and, 395-120-B, I.P.C. In regard to the other 11 accused he has without giving judgment on the charges triable with the aid of assessors referred the case to this Court with regard to the charge u/s 395, I.P.C. Evidently he was under the impression that he would not be justified in delivering judgment in the assessors trial when the "whole" case was to be referred to the High Court. Under the circumstances, I am of opinion that his reference to the High Court is premature.

3. The facts in the case of Emperor v. Hazari Lal AIR 1982 Pat 156 are not really applicable to the facts of the present case. A mere statement of the facts of that case will make the position clear. The accused were charged under Sections 302 and 326, I.P.C. which charges were triable by jury. There were three other charges under the Explosive Substances Act and the Arms Act triable with the aid of assessors. The jury acquitted the accused of the charge u/s 302, I.P.C. and found him guilty u/s 326. They were further unanimously of opinion that the accused was guilty of the charges under the Explosive Substances Act and the Arms Act. The learned Judge accepted the verdict of the jury u/s 326, I.P.C., and convicted the accused and sentenced him thereunder.

4. He also accepted the opinion of the assessors and convicted and sentenced the accused under the Explosive Substances Act and the Arms Act but referred the case u/s 302, I.P.C., to High Court u/s 307, Criminal P.C. The reference was rejected on the ground that it was against the provisions of Section 307, Criminal P.C., for the High Court if it is to exercise its functions properly in a reference cannot approach the transaction as a whole with its hands tied as to one or more aspects. It must be noted that in that case the Sessions Judge had already convicted and sentenced the accused under the charges triable with the aid of assessors and no flaw was found with that procedure. The decision in the case of Pachaimuthu v. Emperor AIR 1932 Mad 512 is more to the point, A reference was rejected because it was made without disposing of the charges which were triable with the aid of assessors.

5. I would therefore send back this case to the learned Sessions Judge of Bhagalpur to submit his reference later on if he so desires after he has delivered a judgment with regard to the charges under Sections 402 and 395-120B, I.P.C.

Courtney-Terrell, C.J.

6. I agree.