REBATI MOHAN CHAKRABARTI Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by two persons Rebati Mohan Chakravarti alias Eebati Thakur and Jabbar Sheik alias Abdul Jabbar. These two persons were tried by the learned Sessions Judge of Mymensingh sitting with a jury on a charge of daeoity under Section 395, I.P.C, and also under Section 397. The jury unanimously found the two appellants not guilty under Section 397 and they uunanimously found both the appellants guilty under Section 395. The learned Sessions Judge agreeing with this verdict has sentenced them both to four years rigorous imprisonment and further to a fine of Rs. 50 each in default to suffer further imprisonment for six months.

(2.) The dacoity in question took place in the house of one Mathur Modak on the night of 10th December 1926. The dacoits used guns and some three persons were wounded in the course of the daeoity and cash and ornments were looted.

(3.) The two appellants both pleaded not guilty. The first point raised by the appellants relates to the constitution of the jury. What happened was this. The jury was empanelled and sworn and a foreman appointed. Meanwhile another case was being tried. It was then found when the present case was called on that the foreman of the jury has been seen talking with the Court Inspector. This allegation being substantiated the Judge quite properly discharged him, took another gentleman who was present, empannelled him and proceeded with the case. I may say at once that the objection is a technical one for it is not suggested that the accused was in any way prejudiced by what happened. He contended that the only course open to the Judge was to discharge the whole jury and empanel a new one. The Code strange to say makes no provision for dealing with a jury or jurors guilty of misconduct. The only section dealing with the discharge of a jury is Section 282, Criminal P.C, which provides what was to be done in the case of illness of a juror. It has, however, been held that the Judge has an inherent power to discharge a jury for misconduct. Rahim Sheik V/s. Emperor A.I.R. 1923 Gal. 724 a decision to which I was myself a party.