ROSONALI Vs. EMPEROR

JUDGEMENT

(1.) In all these seven appeals the point has been taken that the trials in the sessions Courts, out of which these appeals have arisen, have been bad inasmuch as the provisions of Section 276, Criminal P.C., and of the other relative sections were not complied with. In other words, it is contended in these appeals that the constitution of the Courts for the trial of the accused in these cases has not been in accordance with law.

(2.) Before we deal with this point it maybe desirable to set out briefly the facts involved in each of these appeals. In appeal 111 of 1927, the accused were charged under Section 148, I.P.C. There was also a charge against accused 1 and 4 under Section 324, I.P.C. Accused 2 was further charged with an offence under Section 304, I.P.C. It is pointed out in the affidavit of Meserali which has been filed before us, that out of the number of persons summoned under Section 326, Criminal P.C., only five persons attended at the time ofthe commencement of the trial. The five persons who attended were asked by the learned Additional Sessions Judge ftp act as a jury. It is, therefore, contended that the jury in this appeal were not chosen by lot in manner required by Section 276, Criminal P.C., and that, therefore, there was no properly constituted Court consisting of judge and jury for the trial of the accused. In the order sheet it is stated that after the charges were read and explained to the accused and after their pleas were taken the persons, whose names are mentioned in the affidavit of Meserali were chosen by lot without any objection and duly sworn. On behalf of the Crown, however, it has not been challenged that as a matter of fact only five persons out of the number of persons summoned were present at the time of the commencement of the trial, who could be empanelled to act as a jury.

(3.) In appeal 117 of 1927 the accused were charged with having committed offences punishable under Secs.366 and 368, I.P.C. It is stated in the affidavit of Ghulam Makdum Mia which has been filed before us, that out of ten jurors summoned under Section 326, only seven attended at the time of the commencement of the trial and that out of the said seven persons two were excused on personal grounds by the Sessions Judge and that out of the remaining five persons the accused objected to one juror when his name was called out and that the said objection was allowed by the Sessions Judge. There remained, therefore, four persons who could be asked to act as jurors and the deficit in this case was made good by calling one Babu Motilal Banerjee to take his seat on the-jury as the fifth juror. It is, therefore, contended that the jury were not chosen by lot in manner required by Section 276, Criminal P.C. In this casa we sent down the affidavit of Ghulam Makdum to the learned Sessions Judge for a report and the facts according to him areas follows: Tan jurors were summoned to attend Court on 29 November 1926. Out of the ten summoned only seven appeared. From the seven it was necessary to select five by lot to serve on the jury. Seven tickets bearing the names of the seven jurors were put in the ballot bag and were drawn out one by one by me personally. As each ticket was drawn out of the bag, the name on it was read out to the Court, and the defence asked if they objected to the juror. If no objection was raised then the juror immediately took his seat in the jury box. Two jurors, when the tickets bearing their names were drawn out, asked to be excused on personal grounds and were excused. The defence objected to one juror and the objection was allowed. The result was that when the last ticket had been drawn out of the bag, there were only four jurors in the jury box. To make up the deficiency I sent out notices to several persons whose names are on the jury list and who reside near the Court, to attend. So far as my recollection goes four or five such urgent notices were sent out. Two of the new jurors so summoned attended. Their names were written on tickets and the tickets put in the ballot bag. I drew out one ticket and on the name being read out asked if the defence objected to the juror. No objection was raised. This juror then took his seat, joining the other four in the jury box. The one remaining juror was discharged and the trial commenced.