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The Emperor v. Erman Ali And Ors. Accused
Factual and Procedural Background
Nine persons were accused in the same proceedings: one accused was charged with murder under Section 302, and the remaining eight were charged with offences under Section 302 read with Section 149, I.P.C. The Sessions Judge of Bakarganj tried the matter with a jury of nine persons who were chosen by lot from among 14 persons summoned to serve as jurors under Section 326, Criminal P.C. The trial Judge disagreed with the jury's verdict and, under Section 307, Criminal P.C., referred the case to the High Court.
At the hearing of the reference, counsel for the accused objected that the jury had not been constituted in accordance with the law because Section 326, it was contended, requires that the number of persons summoned be not less than double the number required for a trial (i.e., at least 18 persons), whereas only 14 persons had been summoned. The Division Bench referred two specific questions to a Full Bench for decision, and the Full Bench answered those questions in the negative and remanded the case to a Division Bench to be dealt with on the merits.
Legal Issues Presented
- In a murder case where the number of jurors summoned is fourteen, nine of whom appear and are chosen by lot, is the trial bad by reason of the fact that only fourteen jurors have been summoned in contravention of the provisions of Sections 274 and 326, Criminal P.C.?
- Was the case of Emperor v. Tamizuddin Ahmad [1929] 33 C.W.N. 1054 rightly decided?
Arguments of the Parties
Accused's Arguments
- The jury was not lawfully constituted because Section 326 requires the number of persons summoned to be not less than double the number required for a trial; for a murder trial where nine jurors serve, at least 18 persons should have been summoned, but only 14 were summoned.
- Because fewer than 18 persons were summoned, there was a breach of a mandatory provision which affected the constitution of the tribunal and rendered the proceedings void. Authority for this proposition was cited as Emperor v. Tamizuddin Ahmad [1929] 33 C.W.N. 1054.
The opinion does not contain a detailed account of the State's or prosecution's counter-arguments in the reference hearing.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Serajul Islam v. Emperor | The number to be summoned should always be double the number required for the trial; the subsection's minimum is applicable to each individual case and cannot be lowered because summoned persons are to be used for one case only. | The Court relied on this authority to explain the historical approach to Section 326 but nevertheless rejected an extreme result that would render a properly empanelled jury invalid merely because fewer than double the number had been summoned in a particular case where no prejudice was shown. |
| Dwarika Malo v. Emperor and Amir Khan v. Emperor [1929] 33 C.W.N. 1053 | When applying the standard, it is not correct to regard seven as "the number required" for a murder trial absent circumstances making nine impracticable; therefore 18 persons, not 14, should be summoned. | The Court acknowledged these decisions as standing for the proposition that 18 should be summoned in ordinary circumstances but distinguished the present case on the basis that the statutory number actually sat, were chosen by lot and no prejudice was shown. |
| Kedar Nath Mahato v. Emperor | Persons who actually serve as jurors must be chosen in strict compliance with Sections 276 to 278, Cr. P.C.; failure to do so renders proceedings bad. | The Court accepted the necessity of strict compliance with Sections 276–278 for selection and noted that in the present case the jurors were chosen by lot in accordance with those provisions and were not challenged. |
| Emperor v. Tamizuddin Ahmad [1929] 33 C.W.N. 1054 | Authority for the proposition that summoning less than the required minimum (less than 18) reduces the chances of selection by lot and may render proceedings void as a breach of a mandatory provision. | The Division Bench had treated this decision as directly in point; the Full Bench declined to follow it and answered the referred questions in the negative, holding that the mere summoning of fewer than 18 persons did not, without proof of prejudice or failure of justice, invalidate the trial. |
| Brojendra Lal Sircar v. Emperor [1902] 7 C.W.N. 188 | Authority indicating that a Judge cannot ignore provisions for balloting and that Section 326 must be given meaning consistent with other provisions (referenced in context with Section 327). | The Court used the case to support a purposive reading of Section 326 with Section 327; but it held that the practice of summoning for special cases is a justifiable departure under "ordinarily" and that compliance with the section's standard is required when the statutory scheme contemplates it. |
| Rahamat Sheik v. Emperor | Referenced with Brojendra Lal Sircar as authority for the proposition that certain ballot provisions and the section cannot be ignored by a Judge. | Used to illustrate that legislative directions about jury selection and balloting must be respected; the Court balanced this with practical considerations about the scope of the word "ordinarily" in Section 326. |
| Subrahmania (Subramania) Iyer v. Emperor [1902] 25 Mad. 61 (Privy Council) | Example where flagrant violation of procedural rule went to the root of the trial; discussed in relation to interpretation of Section 537 and the consequences of procedural irregularities. | The Court discussed the case at length to reject an interpretation that every violation of the Code must vitiate proceedings; it distinguished cases where the procedural breach goes to the root from those where no prejudice is shown. |
| Abdul (Abdur) Rahman v. Emperor (A.I.R. 1927 P.C. 44 / referenced decision) | Applied Section 537 and held the appropriate test is whether there is ground for any probable suggestion of a failure of justice; some irregularities may be curable if no such prejudice is shown. | The Court accepted this test as governing the interpretation of Section 537 and applied it to conclude that lack of summons to 18 persons did not necessarily cause a failure of justice in the present case. |
| Abdur Rahman v. Keramat [1900] 27 Cal. 939 | Referenced for Maclean, C.J.'s view that "all irregularities are illegal" — a proposition criticized by later authorities. | The Court cited and criticized the view that all illegalities are equal in importance, aligning instead with authorities that require assessment of prejudice and the facts of each case. |
| R. v. Justice of the County of London [1893] 2 Q.B. 491 | Brown, L.J.'s observation that one must look at each Act and section to find its meaning rather than rigidly categorising provisions as directory or imperative. | The Court invoked this principle to support a fact-sensitive approach to whether a statutory provision is mandatory in the sense that its breach vitiates proceedings. |
| Allen v. Flood [1901] A.C. 506 | Lord Halsbury's admonition that every judgment must be read as applicable to the particular facts proved; cases are authority only for what they actually decide. | The Court relied on this principle to caution against over-generalising from precedent and to support its conclusion that technical breaches not shown to cause prejudice should not automatically vitiate trials. |
| Subramania Ayyar v. Emperor [1902] 25 Mad. 61 | Same Privy Council decision as Subrahmania Iyer v. Emperor; cited regarding breaches of procedure that go to the root of trial. | The Court treated this precedent as describing cases where a breach is fundamental, but rejected reading it as requiring that every breach, however trivial, invalidate proceedings. |
Court's Reasoning and Analysis
The Court's analysis proceeded from statutory construction of Sections 326 and 274, an examination of practice, and an assessment of precedents and the remedial reach of Section 537 of the Code. The principal steps in the reasoning, drawn strictly from the opinion, are:
- Interpretation of Section 326 and the word "ordinarily": Section 326 prescribes that the Sessions Judge shall "ordinarily" request the District Magistrate to summon as many persons as seem needed for trials by jury at the Sessions, the number to be summoned being not less than double the number required for any such trial. The Court emphasised that the word "ordinarily" qualifies the direction and that the subsection contemplates summoning a pool for the Sessions rather than for one particular trial.
- Practical practice and Section 327: The Court acknowledged that in Bengal it is common practice to fix dates for particular cases and to summon persons to provide a jury for that specific case (a procedure authorised by Section 327). The Court accepted that this practice is a departure from the strict terms of Section 326 but is justifiable under the word "ordinarily" and Section 327.
- Interaction with Section 274: Section 274 prescribes that where the offence is punishable with death, the jury shall consist of not less than seven persons, and if practicable, of nine persons. The Court recited earlier decisions that had required the number summoned to be double the number required (thus normally 18 for nine jurors).
- Purpose of summoning a surplus and of the ballot: The Court analysed the purpose of the provision requiring a not-less-than-double summons. It concluded that the requirement is primarily to secure a sufficient pool to allow for contingencies (non-attendance, illness, challenges), rather than to create an additional element of chance or to enlarge the effective area of selection after the statutory ballot. The initial ballot under Section 326(2) already secures selection from the whole jury list, and subsequent procedures (lot and challenges) guard impartiality.
- Mandatory vs. directory: The Court considered whether the numerical requirement in Section 326 is "mandatory" (imperative) or "directory" and noted that statutory language and context must be examined; the mere use of imperative words is not decisive. It found Section 326 to be expressed somewhat loosely and framed by "ordinarily", so the provision's minimum operates as a standard but is not to be treated automatically as voiding proceedings in every deviation.
- Role of Section 537 and the test from Abdul/Abdur Rahman: The Court reviewed authorities on Section 537 (curative provision) and accepted the test articulated in Abdul/Abdur Rahman: whether there is ground for any probable suggestion of a failure of justice. The Court held that not every illegality is of the same category and that the curative scope of Section 537 must be applied by asking whether the accused was prejudiced or whether there was a failure of justice.
- Assessment of the present facts against the test: In the present case the statutory number of jurors sat (nine, or the number required), they were chosen by lot from among those summoned, and there were no objections or successful challenges. It was not shown that the accused suffered prejudice in making his defence or otherwise. On these factual premises the Court concluded that the trial should not be held to be a nullity merely because only 14 (and not 18) had been summoned.
- Evaluation of Emperor v. Tamizuddin: The Court rejected the reasoning in Emperor v. Tamizuddin that summoning fewer than 18 persons necessarily increased the possibility of packing the jury and thus rendered the trial void. The Full Bench disagreed with treating that omission as equivalent to more serious procedural defects (such as trial by an insufficient jury) and refused to adopt a per se rule of invalidation.
- Overarching principle: The Court emphasised a fact-sensitive approach: whether a breach vitiates proceedings depends upon the gravity of the breach and the consequences presumed or proved to have flowed from it; the decisive question is whether there has been a miscarriage of justice.
Holding and Implications
Holding:
Both questions propounded by the Division Bench were answered in the negative. The Full Bench held that the trial was not necessarily bad merely because only 14 persons were summoned where nine jurors properly sat, were chosen by lot, and no prejudice was shown. The case was remanded to a Division Bench to be disposed of on the merits of the other questions.
Implications:
- The direct effect for the parties in this matter is that the reference does not result in quashing the trial on the ground that fewer than 18 persons were summoned; the case returns to a Division Bench for further adjudication on the merits.
- The Full Bench signalled a broader approach to procedural irregularities: technical or formal breaches will not, of themselves, invalidate criminal proceedings unless they produce prejudice or a failure of justice. The Court relied on the curative approach under Section 537, as explained in Abdul/Abdur Rahman, to refuse to treat all statutory irregularities as categorically fatal.
- The opinion expressly declined to follow Emperor v. Tamizuddin insofar as that decision treats the summoning of fewer than the stated minimum as per se fatal; instead the Full Bench required proof or a reasonable presumption of failure of justice.
- Although the Court discussed broader policy concerns (discouraging merely technical objections and ensuring substance of justice is maintained), it did so by reference to existing authorities and the Section 537 test; the decision was grounded in the facts and the application of established principles rather than in the creation of a radical new rule.
1. In this case there were nine accused persons. One of them was charged with murder under Section 302 and the remaining eight with an offence under Section 302 read with Section 149, I.P.C. They were tried by the Sessions Judge of Bakarganj with a jury of nine persons chosen by lot from among 14 persons who had been summoned to serve as jurors under the provisions of Section 326, Criminal P.C. The learned Judge, disagreeing with the verdict of the jury, referred the case to the High Court under Section 307, Criminal P.C.
2. At the hearing of the reference it was objected by the learned advocate for the accused that the jury had not been constituted in accordance with law and that accordingly the proceedings before the trial Judge should be set aside altogether. The objection taken is not that the number of persons who served on the jury, namely nine, was not the correct number under Section 274, but that under Section 326 the number of persons to be summoned was not less than 18 whereas summonses were sent to 14 persons and no more.
3. By Section 326, it is provided:
326(1) The Sessions Judge shall ordinarily, seven days at least before the day which he may from time to time fix for holding the Sessions, send a letter to the District Magistrate requesting him to summon as many persons named in the said revised list or the said special list as seem to the Sessions Judge to be needed for trials by jury and trials with the aid of assessors at the said Sessions, the number to be summoned not being less than double the number required for any such, trial.
4. Upon this subsection, the first thing to notice is that it purports to prescribe something that is "ordinarily" to be done by the Sessions Judge. He is to request the District Magistrate to summon as many persons as seem to the Sessions judge to be needed for trials by Jury. The subsection envisages him as having fixed time for holding the Sessions and the number referred to is the number not for any particular trial but for the trials by jury which are to take place at the Sessions. The minimum number to which the subsection refers is not less than double the number required for any such trial, i.e., for any one of the trials to take place at the Sessions.
5. It has been found convenient in Bengal and is a practice generally adopted, to fix dates for each particular case to be tried before the Sessions Judge and to summon a certain number of persons to attend on the date fixed in order to provide a jury for that particular case. This practice is authorized by Section 327, and in the pre sent case it has been followed.
6. Under Section 274, Criminal P.C., it is provided that where an accused person is charged with an offence punishable with death, the jury shall consist of not less than seven persons, and if practicable of nine persons.
7. Now, in dealing with these matters this Court has by its decisions from time to time laid down four things. The first is that although a jury is summoned for a particular case, the number to be summoned should always be double the number required or the trial. If the summoning of persons to act as jurymen for the whole of a Sessions as contemplated by Section 326 is not to be carried out, nevertheless the direction "not less than double the number required for any such trial" can and should be carried out by adopting that minimum in each individual case. The standard set by the subsection should not be lowered by reason that the services of the persons summoned are in practice to be utilized for one case only : Serajul Islam v. Emperor .
8. The second thing which this Court has laid down is that if by reason of as failure to observe this standard, it results, whether from non-attendance of jurymen or otherwise, that a jury of nine persons cannot be empanelled for the trial of an accused charged with an offence which is punishable with death, this fact will not entitle the Sessions Judge to proceed to trial in such a case with a jury of seven in other words that it cannot be said that it was impracticable to have a jury of nine merely because an insufficient number of persons have been summoned from the jury list : Serajul Islam v. Emperor .
9. The third thing which has become matter of decision is that in applying this standard to such a case it is not correct to regard seven as "the number required for any such trial" in the absence of circumstances which make it impracticable to have nine. Hence 18 persons and not 14 persons only should be summoned : Dwarika Malo v. Emperor and Amir Khan v. Emperor [1929] 33 C.W.N. 1053.
10. The fourth thing which this Court has determined is that the persons who are actually to serve as jurors must be chosen in strict compliance with the provisions of Sections 276 to 278, Criminal P.O. and that if these provisions are not strictly observed the proceedings will be treated as altogether bad : Kedar Nath Mahato v. Emperor .
11. Upon this reference we are asked by the learned advocate for the accused to hold that notwithstanding that the number of persons empanelled on the jury was the correct number, and not withstanding that they have all been chosen from among persons summoned to act as jurors in strict accordance with the provisions of Sections 276 and 278, the proceedings have been altogether illegal and must be quashed because summonses were not issued to at least 18 persons. Fie contends in view of Section 326 that if any less number of persons be summoned, there is a breach of a mandatory provision of the law which affects the constitution of the tribunal and renders void the proceedings. For this contention there is the authority of Emperor v. Tamizuddin [1929] 33 C.W.N. 1054, which is directly in point. The learned Judges of the Division Bench who dealt with the present case disagreed with that decision and they have referred to us the following questions:
(1) In a murder case where the number of jurors summoned is fourteen, nine of whom appear and are chosen by lot, is the trial bad by reason of the fact that only fourteen jurors-have been summoned in contravention of the provisions of Sections 274 and 326, Criminal P.C.?
(2) Was the case of Emperor v. Tamizuddin Ahmed [1929] 33 C.W.N. 1054, rightly decided?
12. In my opinion these questions should be answered in the negative and the case should be remanded to be dealt with on the merits.
13. The persons who are summoned to attend are chosen by lot (Sub-section 2, Section 326) and in addition, the accused persons have the right of challenge given to them by Section 277. Mr. Taluqdar for the accused contends that the requirement that the number to be summoned shall not be less than double the number required for any trial finds place in the Code not merely for the purpose of ensuring that a sufficient number of persons whose names are on the jury list shall attend at the hearing and be found competent to be jurors and unobjectionable, but in order that an additional element of chance may exist in the interest of the accused person who is, therefore, prejudiced if the area of selection by lot under Section 276 is more limited than Section 326 contemplates. In Kedar Nath Mahto v. Emperor . I find in the order of reference the following observations:
If the accused cannot successfully challenge him, any one of the persons summoned can be a juror to try the case. On this view the object of a second choice being made by lot is to eliminate arbitrary or biased choice as" between one person summoned and another.
14. In the judgment of Buckland, J., in which the Full Court agreed, it was said:
In the course of the argument it was suggested that the ballot required by Section 325(2) as to the persons to be summoned, and that required by Section 276 were intended to benefit the prisoner by ensuring as far as possible an unbiassed and impartial jury, chosen haphazard and that this furnishes an additional reason for requiring that even when the proviso is to be invoked, there shall nevertheless be a ballot. With this, in some measure, I agree, but inasmuch as the prisoner has a right to challenge conferred by Section 278, I should be disposed to think that the object of the several ballots was as much to ensure a fair and impartial incidence of the duty of service upon juries upon those who are liable to it.
15. This passage, it is clear, in no way conflicts with the other. The contention before us that if in a murder case 18 persons are summoned, 9 attend upon summons and 9 are chosen to serve without objection, the trial will be good; but that if 17 persons are summoned 17 attend and 9 are chosen without objection, the trial will be bad. In my judgment very clear reason must be shown for any such contention.
16. In the interests alike of the jury and of the prisoner, it is desirable that the persons who are in fact to serve as jurymen should not be selected by the concious choice of any one, whether it be the District Magistrate, the Judge or any other person. It is necessary in practice to summon a greater number of persons than is required to serve and for this reason some method of elimination is required. This method must be free of the dangers attendant upon a voluntary choice. It is no part, so far as I can see, of the intention of the legislature to have a large area of selection in the persons attending upon summons on the theory that the larger the number of effective names in the ballot box the greater the chance that the persons chosen will make good jurors. This aspect of the matter is dealt with by the ballot under Section 326(2) which directs that all the names on the jury list (with certain exceptions) are to be entered for that ballot. There is much sense in saying that the jurors are to be chosen haphazard from the whole of the jury list but this having been done there would indeed be little point in another lottery but for the considerations I have mentioned. Since mistake, sickness or accident may diminish the number of persons attending upon summons and challenges may diminish their number still further, it is reasonably clear, that the provision as to the number to be summoned is not motived by any idea that a certain superfluity of jurors is required to provide an additional element of chance. It is required to meet these very contingencies and the element of chance is required as a consequence of the superfluity.
17. It is said that the requirement as to the number to be summoned is "mandatory". This word is used in various senses but I understand it to be used as the equivalent of "imperative" as distinct from "advisory" "directory" or "facultative"; Now if we look carefully at the wording of Section 326 we will find it to be expressed somewhat loosely. There are two clauses which may be compared. Immediately after the word "ordinarily" comes the phrase:
seven days at least before the day which ho may from time to time fix for holding the sessions.
18. This fixes a minimum in spite of the word "ordinarily" but the minimum fixed is governed by the word "ordinarily". The requirement as to the number to be summoned is also a minimum and in strictness of form it too is part of a statement of what the Sessions Judge shall "ordinarily" do. The whole practice of summoning jurors for special cases is a departure from the strict terms of the section and is a departure which can be justified under the word "Ordinarily" and by Section 327. If one is summoning a number of people from whom juries have to be chosen for the trial of several cases, the legislature thinks that the number to be summoned should never fall below double the number required for any single case. The legislature has not dealt expressly with the question whether for the purpose of a single case the minimum might be reduced. But the word "ordinarily" can be explained by Section 327 which refers to "other periods than the period mentioned in Section 226" and unless it is so explained a very important provision which ensures that jurors are to be taken from the jury list by means of a ballot becomes optional as under the word ordinarily a Judge could in a particular case ignore the section altogether. This he certainly cannot do Brojendra Lal Sircar v. Emperor [1902] 7 C.W.N. 188; Rahamat Sheik v. Emperor . Hence in such cases as Serajul Islam v. Emperor , this 'Court' has held that the standard set by the section for the case contemplated therein is in all cases to be complied with.
19. When the circumstances which call for certain action are in character and and number such as can be fully stated or clearly implied the Code constantly uses the word "shall" or other imperative words. The Code is a long list of such imperatives some of which have reference to matters which are in no way vital and many of such are directed to minor incidents of procedure. But for Section 537 there would be grave disadvantages in a Code which makes statutory so many and so various requirements. That section obviates the difficulty which would arise by reason of all irregularities bearing the character of transgressions of a Statute.
20. The Judicial Committee pointed out in Subrahmania Iyer v. Emperor [1902] 25 Mad. 61, that though in a sense the merest irregularity may be illegal, it does not follow that all illegalities are within the scope of Section 537. They did not say or suggest that nothing could be cured under the section if it was illegal and as the Division Bench has painted out we now have in Abdul Rahman v. Emperor , an express decision to the contrary. Both decisions are really a condemnation of the view that all illegalities are as such in the same category for the present purpose. In the former case it was idle to suggest that there was no prejudice. The accused had suffered in an aggravated form the very prejudice from which the Code intends to save him. In Abdul Rahman v. Emperor , the test applied was whether there was ground for any probable suggestion of any failure of justice. The Judicial Committee in view of difference of opinion in India and of the fact that no case had come before them since Subramania Iyer v. Emperor [1902] 25 Mad. 61, carefully explained and applied Section 537 "for the guidance of the Courts" and this decision must now govern the interpretation of the section unless and until the legislature shall see fit to amend the section.
21. In my judgment the test there laid down cannot be evaded by saying that the omission here is an omission to do what is required by a "mandatory" provision of the Code. Nor by saying on the one hand that the summoning of jurors is not even a "proceeding before or during the trial" and on the other hand that it is such a matter that a defect therein will vitiate the trial.
22. I do not understand what was meant when it was said in Emperor v. Tamizuddin Ahmad [1929] 33 C.W.N. 1054:
By summoning less than 18 you initially reduce the chances of selection by lot and make it more possible to pack the jury.
23. Nor, save on the footing that one illegality is the same as another, can I agree that the summoning of less than 18 persons is on a par with trying a murder case with a jury of five. The present case has no analogy to the error in the "mode of trial" referred to in Subramaniya Iyer v. Emperor [1902] 25 Mad. 61. The fact that the legislature has expressly provided in Section 537 that in the absence of prejudice to the accused an omission even to revise the list of jurors shall not render a trial void an irregularity which would prima facie entitle the accused to "challenge the array" in no way inclines me to think that the present case is beyond the scope of Section 537.
24. In the course of the argument before us the case was put of some jurors having to be chosen from among "persons present in Court" whose names were not on the jury list and of the need for this course having been occasioned by reason that the number of persons summoned was insufficient. I desire to express no opinion as to the effect upon the validity of a trial of such events as these.
25. Moreover as I have had occasion to refer to previous decisions upon Section 537 and as we are sitting as a Full Bench, I think it well to add that in view of Abdul Rahman's case some of the previous decisions of this Court may require to be revised. This case does not require us to consider that aspect of the matter and it should be left for discussion when the need arises, and when specific questions can be considered.
26. In my opinion, the view taken by the learned Judges who have referred this matter to the Full Bench is correct and the questions which they have propounded for oar decision should be answered in the negative.
27. The ease should be remanded to a Division Bench for disposal on the merits of the other questions which arise.
C.C. Ghose, J.
28. I agree.
Suhrawardy, J.
29. I agree.
Pearson, J.
30. I agree.
Page, J.
31. I agree and I desire to add some observations on the general question raised, which I regard as of prime importance.
32. The maintenance of law and order in India, as in other countries, depends mainly upon criminal law and procedure being HO plain and sensible that ordinary persons are not mystified by its intricacies, and recognize that thereby substantial justice is done between the Crown and the accused. No one doubts that the utmost precaution should be taken to ensure that an innocent person is not convicted, but the extent to which the administration of the criminal law suffers when an obviously guilty person succeeds in evading conviction is not so fully appreciated. In truth, a miscarriage of justice of either description bewilders the public, and tends to shake the faith that is reposed in the stability and good sense of the Courts that administer justice in criminal cases. For this reason I am strongly of opinion that when the decisions of a criminal Court in substance appear to be correct an appeal Court should endeavour to uphold the decision even in cases where the rules of procedure by which the trial is to be regulated have been transgressed; except where the breach of the prescribed rules is of so grave a nature that the form of trial was substantially different from that provided by law for the offence charged, or where, although the violation of the rules was not so profound as radically to alter the mode of trial, it is proved that thereby in the event a failure of justice has in fact been occasioned.
33. The test to be applied, in cases where the prescribed rules of procedure have not been followed, to ascertain whether there has been a mis-trial is always essentially the same, namely, whether there has been a miscarriage of justice for if the appeal Court is satisfied in point of fact that the accused has materially been prejudiced by the breach of procedure clearly a failure of justice has occurred; while if by reason of the breach of procedure there has in effect been substituted another mode of trial for that prescribed by the legislature as affording the best means of obtaining a fair trial, it is presumed that a fair trial has not been accorded the accused, and that in that case also there has been a failure of justice. In either case, therefore, the proceedings protanto will be set a side upon the ground that by reason of the breach of the rules of procedure a miscarriage of justice has been occasioned. On the other hand, if the appeal Court is not satisfied that the breach of procedure falls within one or other of those categories, in my opinion it ought not to hold that the proceedings have become vitiated merely because there has been a transgression of the prescribed rules by which such proceedings are to be regulated. It is ever to, be borne in mind that rules and regulations are intended to be the handmaid and not the mistress of the law, and that in criminal proceedings it is of the utmost importance that a decision just, and reasonable on the merits should not be disturbed because in the course of the proceedings some flaw can be detected that is not fundamental and which is not proved to have worked injustice to the accused, although it may constitute a breach of the rules of criminal procedure. Now, in 1901 Subramania Ayyar v. Emperor [1902] 25 Mad. 61, was decided by the Privy Council. It was a plain case in which there had been a flagrant violation of a rule of procedure enacted to prevent the prejudice that an accused person inevitably will suffer if he is called upon to answer in one trial a multiplicity of charges. In that case the failure to confirm to the procedure laid down in the Code of Criminal Procedure clearly went to the root of the trial, and vitiated it. Lord Halsbury (Lord Chancellor) however, in the course of delivering the judgment of the Board took occasion to animadvert upon the view expressed by Maclean, C.J., in Abdur Rahman v. Keramat [1900] 27 Cal. 939:
that because all irregularities are illegal, as he says in a sense, and this trial was illegal, that therefore all things that may in his view be called illegal are, therefore, by that one adjective applied to them, become equal in importance, and are susceptible of being treated alike Subramania Ayyar v. Emperor [1902] 25 Mad. 61.
34. That, no doubt, was a sound criticizm of the propsition enunciated by Maclean, C.J., and I apprehend that it would equally be incorrect to assert that every violation of the Code of Criminal Procedure is curable as that every failure to conform to the rules of procedure ipso facto vitiates the proceedings. There is no magic in the use of the imperative in this connexion, and it cannot reasonably be contended that each and every transgression of the mandatory rules of procedure set out in the code are "equal in importance" or "are susceptible of being treated alike." I respectfully agree with the observations of Brown, L.J., in R. v. Justice of the County of London [1893] 2 Q.B. 491:
that there is no such exact division of sections in Acts of Parliament into those that are directory and those that are imperative as is ordinarily assumed to be a categorical division which exhausts every possible class of section. You must look at each Act of Parliament and each section to see exactly what it moans. No other rule of construction of Acts of Parliament that I know of is of much use, except to try and find out as best you can what the Act of Parliament means, and that is not a rule of construction at all.
35. Whether a particular breach of the procedure prescribed in the Code vitiates the proceedings or not, in my opinion must depend upon the gravity of the breach and the consequences that are presumed or proved to have flowed from it and I am satisfied that Lord Halsbury, whose judgments were permeated with sturdy common sense, and who in Allen v. Flood [1901] A.C. 506, laid down:
that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found did not intend to encourage in any way a tendency to exaggerate the importance of breaches of procedure that did not materially affect the due course of justice.
36. I discern, however, in the numerous decisions which purport to be founded upon Subramania Ayyar v. Emperor [1902] 25 Mad. 61 a tendency to regard the judgment in that case as indicating that, in the opinion of the Judicial Committee, where there has been a departure from the strict letter of the Code of Criminal Procedure indeed, according to some of the decisions as I venture to think with all due deference even in matters of mere triviality and where it cannot reasonably be suggested that the accused has suffered any prejudice the appeal Court ought toll old that a mistrial has taken place. The result has been that the path of a Judge exercising criminal jurisdiction is beset with pitfalls and obstructions, and his attention must needs be diverted unduly from the substance to the form of the proceedings, lest perchance if he fails in any particular to conform to the provisions of the Code the proceedings may be set aside. Of course, a Judge who deliberately or through inadvertence does not follow the procedure laid dow in the Code fails in the performance of his duty, but the effect of non-compliance with the statutory rules of procedure, in my opinion, must vary according to the gravity and effect of the breach, and the test in each case is whether the proceedings have resulted in a miscarriage of justice. In Allen v. Flood [1901] A.C. 506 Lord Halsbury added:
that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.
and in, my opinion, no sanction or warrant can be found in Subramania Ayyar's case [1902] 25 Mad. 61 for a method of construction that tends to magnify the importance of technical defects to the detriment of the substance and the merits of a case. In my opinion the objection raised to the validity of the trial in the present case is misconceived. The accused was tried by the statutory number of jurors, who were chosen by lot without objection or challenge from the accused. It is not proved that the accused was prejudiced in making his defence or in any other way by reason of the course that the proceedings took. In these circumstances an argument that the trial was a nullity merely because only 14 instead of 18 persons were summoned as jurors is one that with all due deference, in my opinion, ought not to be countenanced, and I agree that a negative answer should be given to the questions that have been propounded. The case of Abdur Rahman v. Emperor A.I.R. 1927 P.C. 44, decided in 1926 marked the turning of the tide, and the decision of the Full Bench on this reference will, I trust, have the salutary effect in criminal matters of discouraging objections that are merely technical, and broadening the outlook of those whose duty it is to administer justice according to law.
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