STATE OF MAHARASHTRA Vs. RAMGOPAL GANPATRAI RUIA

JUDGEMENT

(1.) AN application to dispense with the Jury in a case pending before the Sessions Court, Greater Bombay, was made to a Division Bench consisting of my brothers Datar and Miabhoy and that Bench felt some difficulty as to whether on a true construction of S. 269 (4) of the Criminal Procedure Code the High Court has the power to dispense with the trial by Jury and has referred this question to a larger bench; and the question referred to us is whether the High Court can, in the circumstances stated in ,sub-s. (4) of S. 269 of the Criminal Procedure Code, by order direct a case pending trial before the Court of Session lor Greater Bombay to be tried by the Judge himself without a jury.

(2.) NOW, in order to understand and appreciate the difficulty that has arisen, it is necessary to look at the various amendments in the Code of Criminal Procedure made both by the Parliament and the State Legislature. The scheme of the Code before it was amended by Act XXXIJ of 1938, which is a Bombay Act, was that all trials before the High Court were by Jury, and that is S. 267. Then S. 263 1959 Bom D. F. /1 dealt with trials before a Court of Session and the original provision was that the trials were to be either by Jury or with the aid of assessors. Section 269 enabled the State Government to direct that the trial of offences, or of any particular class of offences, before any Court of Session, shall be by Jury in any district, and to revoke or alter such order. Therefore, the original Code drew a sharp distinction between trials before a High Court and trials before a Court of Session. Whereas in the case of a trial before a High Court, trial by Jury was obligatory, in the case of trials before the Sessions Court the trial could be by Jury or with the aid of assessors and it was left to the State Government to decide by notification in which district and in what classes of offences trial should be by Jury. Then came Bombay Act XXXII of 1948 and the object of this Act was to constitute the city of Bombay into a separate district and to set up a Sessions Court to have cases arising in the city of Bombay triable by that Court of Session. For that purpose the Criminal Procedure Code had to be amended. . The first amendment was to S. 267 which provided, as amended, that not only trials before the High Court, but also before the Court of Session for greater Bombay, shall be by Jury. Section 268 was amended by adding the words "subject to the provisions of S. 267,'' so that S. 268 only applied to Sessions Court outside Greater Bombay. In other words, the result of the amendment was that, as far as Greater Bombay was concerned, it was put in the same position as the High Court and trials before the Court of Session for Greater Bombay had to be by Jury. With regard to Sessions Courts outside Greater Bombay, the position continued to be the same. Then came Act XXVI of 1955, which was passed by Parliament, and which by amending S. 268 did away with trials with the aid of assessors. It also enacted sub-s. (4) of S. 269. The object of enacting this sub-section was to do away with Jury trials in two classes of cases: (1) where the volume of evidence was such that it Was not desirable that the Jury trial should take place as it was not likely that the trial would be concluded within a short time; and (2) where the complexity of the evidence was such that men without legal training might be assumed not to be in a position to understand or appreciate the evidence led in the Court. The question that we have to consider is whether sub-s. (4) of S. 269 applies only to S. 269 or it also applies to S. 267; in other words, whether the power that has been conferred upon the High Court to dispense with a trial is confined to cases triable by jury in a Court of Session outside the Court of Session for Greater Bombay, and also whether that power cannot be exercised by the High Court in cases where the trial is before the High Court itself.

(3.) NOW, first turning to the language of sub-s. (4) of S. 269, the sub-section opens with the words "when, in respect of a trial in which the accused is charged with an offence triable by Jury" then come the operative words as to what conditions are to be satisfied before the High Court could exercise the power, and the power of the High Court is expressed in this language at the end of that subsection: