EMPEROR Vs. VITHAL TUKARAM

JUDGEMENT

(1.) THE applicants were tried along with certain other accused for certain offences including an offence under Section 436, Indian Penal Code, 1860, i. e. arson, in the Court of the Additional Sessions Judge, Thana, the trial being by jury. Under an erroneous view that the Enhancement of Penalties Ordinance, 1942, applied to Kolaba District, from which the case came, the Judge empanelled a jury of nine persons under8. 274 of the Criminal Procedure Code, 1898, as the Ordinance made the offence under Section 436 punishable with death. Six of the accused were convicted and three acquitted. THE acquitted persons are the present petitioners Nos. 1, 2 and 3 and petitioner No. 4 is one of those convicted. Five out of the six convicted accused appealed, the one who did not appeal being petitioner No. 4. THEre was also no appeal against the acquittal of the present petitioners Nos. 1, 2 and3. This Court found that the Enhancement of Penalties Ordinance had not been made applicable to Kolaba district and that, therefore, the jury should have consisted of five and not nine persons, Section 274(2) provides that in trials by jury before the Court of Session the jury shall consist of such uneven number, not being less than five or more than nine, as the Provincial Government may direct; and the Provincial Government by a notification dated January 24, 1939, had directed that the jury for the trial before the Court of Session in the Kolaba district of offences punishable with transportation for life or imprisonment for ten years should consist of five persons. As the trial had taken place before a jury in excess of the legal number, it was held that the trial was " necessarily a nulltty ". In support of that proposition the Court relied on Emperor v. George Booth (1903) I. L. R. 26 All. 211. Accordingly the appellants' conviction was set aside and they were ordered to be released, and Government were left to take such further action in the way of a new trial or otherwise as they might think fit. As to those of the accused who were not before the Court in "that appeal, Beaumont C. J. remarked (p. 903): THE accused who have been acquitted of any offence are not before the Court, and are not interested in the validity of the conviction of their co-accused. If they are prosecuted again, they may desire to rely upon Section 403 of the Criminal Procedure Code. No doubt such a contention may be difficult to reconcile with the judgment which we are giving to-day, but at the same time persons who are not before us are not, of course, technically bound by our judgment. All we do is to set aside the conviction of the appellants on the ground that the trial was held by a Court not competent to hold it. THEreafter Government passed orders that all the accused, including the present applicants, should be tried by the Court of Session at Thana. An application was made on behalf of the present applicants to the Sessions Court under Section 403 of the Criminal Procedure Code contending that unless the acquittal of three of them and the conviction of the fourth applicant were set aside by the High Court they could not again be tried. THEre is no question that the present trial is in respect of the same offence as was the subject-matter of the earlier trial. THE learned Sessions Judge took the iview that the earlier trial was by a Court without jurisdiction and that the proceedings thereof were, therefore, void. He relied for this proposition on Queen-Empress v. Husein Gaibu (1884) I. L. R. 8 Bom. 307, Shankar Tulsiram v. Kundlik Anyaba (1928) I. L. R. 53 Bom. 69 : s. c. 30 Bom. L. R. 1435, and the remarks of Beaumont C. J. in Emperor v. Pandu Kusha (1943) 45 Bom. L. R. 902: that the earlier trial having been by a jury in excess of the legal number, it was necessarily a nullity. Accordingly, he came to the conclusion that the Court before which the earlier trial had taken place not having been properly constituted, that is, not having been of competent jurisdiction within the meaning of Section 403 of the Criminal Procedure Code, there was no bar to the present trial under that section.

(2.) MR. Gajendragadkar who appeared on behalf of the appellants in the case reported in Emperor v. Pandu Kusha now appears on behalf of the applicants. He contends that though it was held that the earlier trial was " necessarily a nullity " that cannot mean that it was a nullity in the sense that the Court had ab inilio no jurisdiction to try the case ; and he has sought to distinguish this case from Queen-Empress v. Husein Gaibu and Shankar Tulsiram v. Kundlik Anyaba on the ground that in those cases, on which the learned Sessions Judge has relied, there was ab initio want of jurisdiction in the Courts concerned and that, therefore, in those cases it was proper to hold that there was no bar under Section 403. With regard to the present case his contention is that in the earlier trial the Court did have jurisdiction and that what happened was the proceedings were seriously vitiated by the error committed by the presiding Judge in empanelling a jury of nine persons. The proceedings, according to him, were, therefore, not void in the sense in which that expression has been used in Section 530 of the Code of Criminal Procedure, but the irregularity committed was so serious that an appellate Court was bound to set aside the conviction. He, therefore, contends that it should be held that the present trial of the applicants is barred under3. 403, the Court before which the earlier trial was conducted having been of competent jurisdiction.

(3.) IN our opinion the two cases relied on by the learned Sessions Judge do not afford any guidance on the point under consideration. IN the first of these cases, Queen-Empress v. Husein Gctibu, a Second Class Magistrate had tried the accused under Section 417, INdian Penal Code, and acquitted him, and it was found on the facts that the offence would fall'under Section 420, INdian Penal Code, and was beyond the Second Class Magistrate's jurisdiction. Accordingly, the District Magistrate made a reference recommending that the proceedings being illegal be quashed and the accused be put on trial for such offence as he appeared to have committed. It was held that the Magistrate who had acquitted the accused having no jurisdiction, his proceedings were simply void under Section 530 of the Code of Criminal Procedure and that there was no reason for the interference of the High Court. IN Shankar Tulsimm v. Kundlik Anyaba it was found that the trial Court did not have territorial jurisdiction in respect of one of the offences of which the accused had been acquitted,, the case having again been put up for trial for the same offence. It was held that there was no bar to the second trial under Section 403.