BENI MADHAB KUNDU Vs. EMPEROR

JUDGEMENT

(1.) In this mutter the point has been taken by the Jearned vakil for the appellant, that "the proceedings at the trial were vitiated by the fact that after the Judge s charge was finished--" I am now using the words of paragraph (12) of the petition--"the members of the jury were found walking about "in. the compound of the Court, and persons other than "a juror were seen to speak to the members of the "jury." Upon that being drawn to the attention of the Court, and the appeal having been admitted, apparently the learned Judges who admitted the appeal asked for an explanation with regard to this matter, and the learned Sessions Judge has reported as follows: "Just "after the jury delivered their verdict in this case, the " learned vakil for the defence drew my attention to "the fact that certain jurors had been seen out of their "retiring room and talking to persons other than jurors "after their retirement and before their return. J drew "up a proceeding and questioned every one of the "jurors, the full particulars of which will be found in " the proceeding which forms a part of the record of this " Court. In my opinion the jurors replies are perfectly " true, and the point is of no importance."

(2.) The result of the enquiry which the learned Judge made from the jurors is this: it appears that three of the jurymen, after arriving in their retiring room, went out into the compound for the purpose of relieving nature. The fourth, who was a Mahomedan, went out of the retiring room into the compound for the purpose of saying his prayers, and the fifth juryman remained in the retiring room. The fourth juryman, in his answer to the learned Judge, admits that, while he was outside the retiring room, a man spoke to him and asked him a question and he replied to it. The learned vakil for the appellant has argued that in view of this fact the verdict which involved the conviction of the appellant cannot stand, and, he relied oh Section 300 of the Code of Criminal Procedure which is in these terms--"In cases tried by jury, after the Judge has finished his charge, the jury may retire to consider their verdict. Except with the leave of the Court, no person other than a juror shall speak to, or hold any communication with, any member of such jury." That is an explicit direction to the Court with regard to the course to be adopted when the jury retire to consider their verdict after the charge has been delivered, and it seems to me, in view of the undoubted facts in this case, that this verdict cannot stand for the reason that it is clear that a person other than, a juror did speak to, and hold a communication with, a member of the jury after the charge had been delivered, and it was without the leave of the Court. The result is that this verdict must be set aside.

(3.) It will be open to the Crown to proceed further with the case if it be advised.