KEWAL SARAN SINGH Vs. KAMLA PATI LAL

JUDGEMENT

(1.) This is a reference made by the Additional Sessions Judge of Patna recommending that an order of the Sub, Divisional Magistrate of Dinapore, dropping under Section 139(2) certain proceedings under Chap. 10, Criminal P.C., be set aside, and that the Magistrate be directed to appoint a fresh jury and dispose of the Case according to law. It appears that the constitution of the jury gave a certain amount of trouble in the case. The gentlemen nominated at first to act as jurors declined, some of them, to act in that capacity. The appointment of the jury only became complete on 16 January 1940; but more than six weeks before this Babu Deonandan Sahay one of the jurors had already submitted his report on 28 November 1939.

(2.) The jurors in a body inspected the locality on 30 January 1940 when four of the jurors submitted a concurrent report and Babu Deonandan Sahay repeated his report of 28 November 1939. It is clear that having expressed his opinion before 16 January Babu Deonandan Sahay was not a fit person to be on the jury and the constitution of the jury as completed on 16 January 1940 was essentially defective. In these circumstances the report of the majority of the jury itself becomes illegal and one that cannot be acted upon. Mr. Raj Kiahore has in this connexion drawn attention to Dasya V/s. Nibaran Chandra AIR 1920 Cal 161 where the constitution of the jury was found defective and it was held that the Magistrate should not have acted on the report of the jury and should have appointed a fresh jury and allowed the proceedings to go on with a fresh jury.

(3.) The learned advocate for the opposite party before me has contended that Section 139, Criminal P.C., does not give the Court any power to appoint a fresh jury and that the analogy of Section 282 cannot be properly invoked in connexion with a jury under Chap. 10. I am unable to accept this contention. It is obvious that Section 139 contemplates a legal verdict by a duly constituted jury and the Case in Dasya V/s. Nibaran Chandra AIR 1920 Cal 161 is not the only decision in which it was held that it is open to the Court in its inherent jurisdiction to deal with a defect of the kind that we find in the present case. As a matter of fact it was not in respect of the impropriety of having Babu Deonandan Sahay on the jury at all that the Magistrate came to the conclusion that the verdict of the majority of the jurors was illegal.