RAHIM SHEIKH Vs. EMPEROR

JUDGEMENT

(1.) This application raises a novel point on which there does not appear to be any authority. The petitioners were put on their trial before the learned. Sessions Judge of Rajshahi and a Jury upon charges under Secs.436 and 34 of the Indian Penal Code, and the trial began on the 28 February last and continued from day to day until the 6 March. On that day when 11 witnesses for the prosecution had been examined the learned Judge recorded in the order- sheet that it had come to his notice that some of the Jury had been seen associating with the man looking after the case for the accused. The learned Judge appears to have held some sort of enquiry the nature of which is not specified though I will assume it was sufficient and that he was reasonably satisfied as to the conclusion at which he arrived, and thereupon stated, that he had reason to believe this to be the case, and he consequently ordered the Jury to be discharged and the case to be tried de novo.

(2.) These are all the facts with which we have to deal and, it is now objected on behalf of the petitioners that the order discharging the Jury and directing the trial to re-commence de novo was made without jurisdiction,

(3.) The contention submitted to us is that a case such as this is not provided for by the Code of Criminal Procedure and that Secs.282 and 283 are exchaustive as regards discharging a Jury during the continuance of the trial; there are other sections referring to the discharge of a Jury such as Section 305; but those are sections which only apply at a later stage. The sections, however, do not profess to deal with the circumstances in which a Jury may be discharged, rather it is the other way and, in the circumstances to which they refer, they state that that course may be pursued.