Atkinson, J.:— In this Criminal Appeal No. 172 of 1917 a very ingenious point has been taken by Mr. Sinha on behalf of the accused person Balak Singh, who was charged and convicted under S. 467, I.P.C, of forgery, in respect of a hand-note for a sum of Rs. 200. The trial of the accused was fixed for a certain date when only one duly qualified assessor was present in Court and capable of acting as such; whereupon the Judge ordered any other person who happened to be present in Court, whether on the official list of assessors or not, should be required to act as an assessor. A certain gentleman who was present in Court was brought before the Judge and was compelled, though not an official assessor; to act as an assessor. The person who acted as such assessor was not a person summoned or chosen from among the official list of persons appointed to act as assessors for the year 1917 prepared by the District Magistrate in conjunction with the District Judge. The trial started thus with only one person as an official assessor and the trial proceeded and terminated with only one person presuming to act as an assessor.
2. It is quite clear that a trial instituted in such a form is clearly illegal. S. 284 provides that
“when the trial is to be held with the aid of assessors, two or more shall be chosen, as the Judge thinks fit from the persons summoned to act as such.
3. Now clearly under the provisions of Section 284 of the Cr PC, the trial was not valid; and Mr. Fakhruddin on behalf of the Crown frankly admits that only one person acted as assessor throughout the trial and that the other person who purported to act as an assessor was not upon the official list of persons appointed for the year 1917, though he had been an assessor in the previous year and was not summoned to act as such for the year 1917. Mr. Fakhruddin attempted to rely upon S. 285. Obviously S. 285 has no application to the facts of the present case. That section provides that if in the course of a trial with the aid of assessors, at any time before the finding any, assessor is from sufficient cause prevented from attending throughout the trial, or absents himself, and it is not practicable to enforce his attendance, then the trial may proceed with one assessor. Here the trial proceeded with only one official assessor, and not with two duly qualified assessors, hence the trial was utterly abortive and contrary to law. The cases of Khub Singh v. Emperor(1) and Man Singh v. Emperor(2) are authorities on the point and clearly govern the case.
4. Mr. Fakhruddin does not seem to controvert the facts stated by Mr. Sinha and upon the facts as stated it is quite clear that the conviction of Balak Singh, the petitioner, cannot stand. We think that the proper order that we should make is that the conviction and sentence pronounced by the Assistant Sessions Judge on 3rd July, 1917 be quashed and that the conviction and sentence be set aside, and we direct that the District Magistrate shall take such steps as he may be advised to try Balak Singh again on the charge of forgery.
5. Jwala Prasad, J.:— I agree.
V.S/R.K
6. Conviction set aside.