EMPEROR Vs. ERMAN ALI

JUDGEMENT

(1.) In this case there were 9 accused persons. One of them was charged with murder under Section 302 and the remaining 8 with an offence under Section 302 read with Section 149 of the Indian Penal Code. They were tried by the Sessions Judge of Bakarganj with a Jury of nine persons chosen by lot from among 14 persons who had been summoned to serve as jurors under the provisions of Section 326 of the Criminal Procedure Code. The learned Judge, disagreeing with the verdict of the Jury, referred the case to the High Court under Section 307 of the Criminal Procedure Code.

(2.) At the hearing of the reference it was objected by the learned Advocate for the accused that the Jury had not been constituted in accordance with law and that accordingly the proceedings before the trial Judge should be set aside altogether. The objection taken is not that the number of persons who served on the Jury, namely 9 was not the correct number under Section 274 but that under Section 326 the number of persons to be summoned was not less than 18 whereas summonses were sent to 14 persons and no more.

(3.) By Section 326 it is provided: "326 (i) The Sessions Judge shall ordinarily, seven days at least before the day which he may from time to time fix for holding the Sessions, send a letter to the District Magistrate requesting him to summon as many persons named in the said revised list or the special list as seem to the Sessions Judge to be needed for trials by Jury and trials with the aid of assessors at the said Sessions, the number to be summoned not being less than double the number required for any such trial."