SONIA KOSHTI Vs. EMPEROR

JUDGEMENT

(1.) THE appellant, Sonia Koshti, has been convicted by the Additional Sessions Judge, Nagpur, at the trial held with a jury of an offence under Section 307 of the Indian Penal Code. The jury returned a unanimous verdict of guilty and the Additional Judge sentenced the appellant to ten years, rigorous imprisonment. The scope of the present appeal is necessarily limited by the provision contained in Section 418, Sub-section (1) Criminal P.C., and it only remains to consider whether there is any legal ground on which I can interfere with the verdict of the jury and the sentence passed by the Additional Sessions Judge.

(2.) THE first point urged on behalf of the appellant is that the learned Additional Sessions Judge erred in not choosing the jurors by lot in accordance with the provisions of Section 276, Criminal P.C. I may at once say here that the order-sheet of 30-10-26 does not specify any of the manners in which the jurors were chosen. What it does show is that out of the 10 or 12 Jurors who had attended two were excused on private grounds stated. The order goes on to mention the names of the, jurors chosen, and a further entry is made to the effect that neither prosecution nor defence had any objection to any of the jurors so chosen. I may at once say that, in jury trials it is desirable, if not necessary, that the Judge should specifically state that the jurors have been chosen by lot. In' paragraph 11 of the Judicial Commissioner's Criminal Circular No. I-22 a suitable method to conduct the process of lot is indicated. In the present in-stance, however, for the purposes of deciding the legal question involved, I will make the most favourable assumption to the accused I can, and that is that the Additional Session's Judge did, not choose the jurors by any strict process of lot, but simply selected five jurors; out of the gentlemen summoned to act as such and present in Court. In Emperor v. Bradshaw [1911] 33 All. 385 which had reference to the old Section 460, Sub-section (3) of the Criminal P.C. only three European jurors attended and all these were empanelled there being, of necessity, no choosing by lot. Karamat Husain, J. held that the jury was not a properly constituted one and that there had been a violation of an imperative procedure prescribed by the Code of Criminal Procedure, which could not be remedied under Section 537 thereof. In Brojendra Lal Sirkar v. King-Emperor 7 C.W.N. 188 a similar view was taken and that case had reference to Section 276 of the Code. Stevens and Mitra, JJ., who decided the said case, were of opinion that the irregularity in question was of a very grave and material nature inasmuch as it had affected the proper constitution of the Court; that the appellant had a right to claim to be tried by a jury chosen with strict regard to all the safeguards which the Legislature has provided and that his objection at the time had been overruled; and, on these considerations the learned Justices held that the trial was an illegal one. The contrary view was taken by Field and McDonell, JJ., in Empress v. Jhubboo Mahton [1882] 8 Cal. 739. In that case Section 240 of the old Criminal P.C. (10 of 1872) was in question. The learned Justices held that it was not seriously contended that the appellants were, in any way, prejudiced by the failure of the Judge to choose the jurors by lot; that there was no need to interfere with the verdict and that the trial, so far as that matter went, was a good one.

(3.) THE second ground of appeal does not require serious discussion. In my opinion the Additional Sessions Judge had undoubtedly inherent power, and must necessarily, in the circumstances, have had such power to exempt any particular juror on good cause shown.