KEDAR NATH MAHTO Vs. EMPEROR

JUDGEMENT

(1.) I have had an opportunity of reading the judgment which is going to be delivered by Mr. Justice Buckland with which I agree. Buckland, J.

(2.) Under Ch. 7, Rule 5 of the Rules of the Court, the three appeals, Nos. 377, 468 and 302 of 1927, have been referred to a Full Bench for the purposes of a final determination of the con" struction to be put upon Prov. 2, Section 276, Criminal P.C. So far as the facts of these cases relate to the manner in which the juries were empanelled, they are set out in the order of reference as follows: In appeal No. 377, the accused were charged under Section 147 and under Section 3i5 read with Section 149, I.P.C. Ten persons were summoned to serve on the jury. Of these ten, six persons attended. Of these six, it was ascertained that one was serving in the office of a society of which the Public Prosecutor was the President. An objection being taken to this individual, the objection "was: sustained, and he was discharged. This left five persons who had been summoned. The learned Judge chose one man from among the bystanders in Court, added his name to those of the five persons summoned, and from these six the jury of five was chosen by lot. <JGN>Page</JGN> 2 of 6 In appeal No. 468, the accused was charged under Section 302, I.P.C. The number of persons summoned does not appear from the affidavits, but it is agreed that seven jurors were present, two of whom were European gentlemen. These two were discharged on the ground that they did not understand Bengali. Two persons were chosen from among the bystanders and added to the five who remained, thus making a jury of seven. It is said that in these circumstances there was no choosing by lot. In appeal No. 302, the charges were laid under Secs.301, 147 and 804 read with Section 149, I.P.C. Twelve persons had been summoned to serve on the jury. Seven of these attended, of whom one was excused. Out of the remaining six, five jurors were chosen by lot.

(3.) The questions which arise for determination in each case are : (1) Was the jury empanelled as required by law? (2) If not, must the convictions and sentences be set aside, and a new trial ordered?