ABDUR RASHID Vs. EMPEROR

JUDGEMENT

(1.) This rule has been issued on two grounds: (1) that the order of the Additional Sessions Judge discharging the jury and directing a fresh trial of the petitioners is wrong and should be set aside; and (2) why the case should not be transferred from Noakhali to Comilla.

(2.) As regards the first ground the facts are that the trial went on for a long time and the argument on behalf of the defence was finished and while the Public Prosecutor was arguing on behalf of the Grown an application was filed by the Public Prosecutor for discharging the jury. The facts mentioned in the application were that one of the jurors had called at the house of the Public Prosecutor and that two others were seen talking to a person belonging to the accused party. The application was supported by affidavits and the learned Additional Sessions Judge thereupon examined the pleader Babu Ashutosh Mukherjee and a juror M. Abdul Khaleque. He did not institute a searching enquiry but after examining these witnesses he was of opinion that it was a case of (at least) suspicion and, therefore, he thought it necessary in the interest of justice to discharge the jury. The learned advocate on behalf of the accused argues that the learned Judge should have instituted a regular enquiry into the matter and then if he was satisfied that there was reason to believe that the jurors would not be impartial and would be influenced or if there had been good grounds for suspecting their integrity he could then and then only have discharged the jury. It is regrettable that the trial went on for over 32 days and the case was on the point of being finished when this untoward incident occurred. On behalf of the Crown it is argued that a Judge presiding over the Sessions has absolute right to determine the propriety of discharging a jury and his discretion cannot be questioned either in appeal or in revision. The English law on the point certainly favours this view. It was at one time held that the reasons which led a Judge to discharge a jury may be scrutinized by a Court of appeal or in revision: see Edmond Conway and Patrick Lynch V/s. The Queen [1815] 1 Cox. 210 Subsequently this view was disapproved in Windsor V/s. Regina [1866] 1 Q.B. 289 by the Original Court and also on appeal from that case reported in the same volume at p. 390. The law as it stands in England is that a Judge may at his discretion discharge a jury even though there may not exist "absolute" necessity for doing it but a high degree of necessity for such a discharge is evident. In the King V/s. Ketheridge [1915] 1 K.B. 467, one of the jurors separated himself from his colleagues by mistake. It was held that it was a sufficient reason to justify the order of the Judge for discharging the jury and that it was not necessary or relevant to consider whether the irregularity has in fact, prejudiced the prisoner. It is not necessary for us to go so far as to hold that this Court has no jurisdiction to enquire into the reasons which led the Judge to discharge the jury. In view of the wide provisions Section 439, Criminal P.C., it is difficult to say that this Court is debarred from enquiring into the validity of the reasons for discharging a jury. In some cases in England a Court of appeal had occasion to question the propriety of the reasons for discharging a jury: see Begina V/s. John Barff Charlesworth [1831] 2 F. & F. 326.

(3.) Mr. Taluqdar for the accused says that the learned Judge has nowhere expressed his opinion that the jury had acted in such a way as to justify a conclusion that they were not impartial. But it appears from the order of the learned Judge that to his mind it was apparent that some attempts had been made to influence three of the jurors, and that the materials placed before the Court were sufficient to show that the Public Prosecutor had reasonable grounds for suspicion against three of the jurors. Though the learned Judge would have been well advised to pu3h the enquiry a little further but when he discovered that there were good grounds for suspecting the impartiality of some of the jurors, it was not only discretionary on his part but it was incumbent on him to discharge the jury in order to give the trial a look of fairness. That the Judge has the right to discharge the jury under circumstances which in his opinion justifies the course has been approved of or tacitly admitted in this Court in the case of Rahim Sheikh V/s. Emperor A.I.R. 1923 Cal. 724, where it has been held that though the Criminal P. C. has not specifically conferred any right on the Judge to discharge a jury on the ground of misconduct but every Judge has an inherent power to discharge a jury when he is satisfied by such enquiry as in the circumstances he can adopt that reasonable gounds exist for exercising the discretion vested in him to discharge a jury on suspicion. A similar view was expressed in Rebati Mohan Chakravarty V/s. Emperor . There is another fatal objection to Mr. Taluqdar's request to recall the same jury and continue the trial by them. A jury having once been discharged should not be recalled to do duty as jurors in the same case for apparent reasons. It is reasonable to suppose that after their discharge the jurors might have mixed freely with the people and talked about the case with others. In Emperor v. Monmotha Nath , it was held that a jury once discharged should not with propriety be recalled in the same case on these grounds I dispose of Mr. Taluqdar's first objection and disallow it.