(1.) An objection has been taken that the Court, as constituted by myself as Judge and a jury which had been sworn in the presence of Mr. Justice Taleyarkhan, has no jurisdiction to try the present case. This objection is based upon a contention that the Court which actually had seisin of the case was the Court as constituted when the jury was formed, and that until that jury has been discharged, there cannot be another different Court which can try the case.
(2.) That contention no doubt has in its favour the authorities, to which my notice has been drawn, Empress V/s. Khagendra Nath Bannerji (1898) 2 C.W.N. 481 and Emperor V/s. Jotindra Nath Gui. (1903) 8 C.W.N. xlviii The latter case is not directly in point, but it proceeds on a somewhat similar ground. The former case is more in point. The trial had commenced and the evidence had been partly gone into before one Judge, who retired from the case under Section 556 of the Criminal Procedure Code, which deals with a case in which a Judge is personally interested, without discharging the jury. The Chief Justice then appointed Stevens J. to proceed with the trial of the case, and the latter intimated his intention to proceed with the trial from the point where it had boon left. Thereupon it was contended on behalf of the accused that Stevens J. could not proceed with the trial on the ground I have already mentioned.
(3.) The point was argued, but no judgment was given, because the Advocate General appeared and entered a nolle prosequi under Section 333 of the Criminal Procedure Code. That was stated to be the only way out of the difficulty, unless the counsel for the accused withdrew his objection.