The Judgment of the Court was as follows:—
In all these seven appeals the point has been taken that the trials in the Sessions Courts, out of which these appeals have arisen, have been had inasmuch as the provisions of sec. 276 of the Code of Criminal Procedure and of the other relative sections were not complied with. In other words, it is contended in these appeals that the constitution of the Courts for the trial of the accused in these cases has not been in accordance with law.
Before we deal with this point it may be desirable to set out briefly the facts involved in each of these appeals. In Appeal No. 111 of 1927 the accused were charged under sec. 148, I.P.C There was also a charge against accused Nos. 1 and 4 under sec. 324, I.P.C Accused No. 2 was further charged with an offence under sec. 304, I.P.C It is pointed out in the affidavit of Meserali which has been filed before us that out of the number of persons summoned under sec. 326, Cr. P.C, only five persons attended at the time of the commencement of the trial. The five persons who attended were asked by the learned Additional Sessions Judge to act as a jury. It is therefore contended, that the jury in this appeal were not chosen by lot in manner required by sec. 276, Cr. P.C, and that therefore there was no properly constituted Court consisting of Judge and jury for the trial of the accused. In the order-sheet it is stated that after the charges were read and explained to the accused and after their pleas were taken, the five persons whose names are mentioned in the affidavit of Meserali were chosen by lot without any objection and duly sworn. On behalf of she Crown, however, it has not been challenged that as a matter of fact only five persons out of the number of persons summoned were present at the time of the commencement of the trial, who could be empanelled to act as a jury.
In Appeal No. 117 of 1927 the accused were charged with having committed offences punishable under secs. ??? 368, I.P.C It is stated in the affidavit of Gulam Makdum Mia which has been filed before us that out of 10 jurors summoned under sec. 326, only seven attended at the time of the commencement of the trial and that out of the said seven persons two were excused on personal grounds by the Sessions Judge and that out of the remaining five persons the accused objected to one juror when his name was called out and that the said objection was allowed by the Sessions Judge. There remained therefore four persons who could be asked to act as jurors, and the deficit in this case was made good by calling one Babu Motilal Banerjee to take his seat on the jury as the fifth juror. It is therefore contended that the jury were not chosen by lot in manner required by sec. 276, Cr. P.C In this case we sent down the affidavit of Golam Makdum to the learned Sessions Judge for a report and the facts according to him are as follows:—“Ten jurors were summoned to attend Court on 29th November 1926. Out of the ten summoned only seven appeared. Prom the seven it was necessary to select five by lot to serve on the jury. Seven tickets bearing the names of the seven jurors were put in the ballot bag and were drawn out one by one by me personally. As each ticket was drawn out of the bag, the name on it was read out to the Court, and the defence asked if they objected to the juror. If no objection was raised, then the juror immediately took his seat in the jury box. Two jurors, when the tickets bearing their names were drawn out, asked to be excused on personal grounds and were excused. The defence objected to one juror and the objection was allowed. The result was that when the last ticket had been drawn out of the bag, there were only four jurors in the jury box. To make up the ??? out notices to several persons, whose names are on the jury list and reside near the Court, to attend. So as my recollection goes, four or five ??? urgent notices were sent out. Two of new jurors so summoned attended. The names were written on tickets and tickets put in the ballot bag. I ??? one ticket, and on the name being read asked if the defence objected to the jury no objection was raised. This juror ??? took his seat, joining the other four ??? jury box. The one remaining juror ??? discharged and the trial commenced.
In Appeal No. 185 of 1927 the ??? were charged under secs. 325/34 ??? 323/34, I.P.C It appears that out 12 jurors summoned under sec. 326 ??? eight persons were present at the ??? the commencement of the trial. One ??? man was excused on personal ground. Out of the remaining seven, five jury were chosen by lot as stated in the order sheet without objection.
In Appeal No. 266 of 1927 the accuse were charged under secs. 325 and 325 ??? I.P.C It appears that out of ten ??? summoned under sec. 326 only five ??? sons attended before the commencement of the trial. Two persons from among those present in the Court compound were added to the five mentioned above. Thereafter five persons were chosen by lot as stated in the order-sheet from among the seven.
In Appeal No. 297 the accused was charged under secs. 467/109, I.P.C is said that out of the number of jurors summoned under sec. 326 only four jurors were present in Court before the commencement of the trial and that the learned Sessions Judge sent for one juror, am he thereupon asked the five to serve on the jury and that thereafter the trial commenced. It is not stated in the order-sheet that the jurors were chosen by lot nor is it clear how there was or could have been a lottery.
In Appeal No. 307, it appears that ten persons were summoned under sec. 326. In the order-sheet it is stated by the sessions Judge in an addendum that “more than five persons were present so that a selection was possible, and as far as ??? know, all those summoned were present.” The trial commenced on the 14th March 1927, but later on it stood adjourned to the 7th April 1927. On the 16th March one of the jurors asked to be exposed from further serving on the jury as ??? wanted to go on pilgrimage. His Prayer was grafted. The Sessions Judge then proceeded to summon two jurors from the special jurors' list, but on the 7th April only one such juror attended and he was substituted in place of the juror who ??? gone on pilgrimage and who had been ???. The accused in this case were charged under secs. 436 and 436/109, I.P.C
In Appeal No. 366 the accused was ??? with an offence punishable under ???, 302, I.P.C It was therefore ??? in a case like this to have a jury of at ??? seven persons. It is said in the ??? of Afsaruddin which has been filed before us that out of 14 jurors summoned under sec. 326, Cr. P.C, only seven ??? in Court before commencement of the trial, and that the learned Sessions judge did not take any steps to have the ??? chosen by lot.
Under sec. 274, Cr. P.C, it is provided that in trials by jury before the Court of sessions, the jury shall consist of such uneven number, not being less than five or more than nine as the Local Government, ??? applicable to any particular District or to any particular class of offences in that District, may direct. If is further provided that where any 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. In Bengal where the accused is not a European or American, it has been laid down by Government that the jury should consist of five persons. Secs. 319 to 332 deal, among other matters, with questions relating to lists of jurors and assessors for Courts of Sessions and to the summoning of jurors and assessors for that Court. Under sec. 326, Cr. P.C, the Sessions Judge shad 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 revised list or the 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, and including, where any accused person is a European or an American, as many Europeans or Americans as may be required for the purpose of choosing jurors or assessors for the trial. The names of the persons to be summoned shall be drawn by lot in open Court excluding those who have served within six months, unless the number cannot be made up without them; and the names so drawn shall be specified in the said letter. Where the accused required and is entitled to be tried under the provisions of sec. 270, there shall be chosen by lot, in the manner prescribed by or under sec. 276, from the whole number of persons returned the jurors who are to constitute the jury until a jury containing the proper number of Europeans or Europeans and Americans ??? of Indians, as the case may be, has ??? obtained. Provided that in any ??? which the proper number of ??? Americans cannot otherwise be obtained, the Court may, in its discretion for the purpose of constituting the jury, summon any person excluded from the list on the ground of his being exempted under sec. 820.
It is therefore clear that the minimum number of persons to be summoned ordinarily is ten and that in case where the, accused is charged with an offence punishable with death, the minimum number of persons to be summoned is 14 and that the number may be as many as 18. The form of precept to District Magistrates to summon jurors and assessors is set out in Sell. V, Form No. 32. We then come to secs. 276 to 279. Under sec. 276 the jurors shall be chosen by lot from the persons summoned to act as such, in such manner as the High Court may from time to time by rule direct, provided that in case of a deficiency of persons summoned, the number of jurors required may, with the leave of the Court, be chosen from such other persons as may be present. Under sec. 277 provision is made for objections to jurors whose names are called out, and sec. 278 sets out the grounds of objection which may be urged by the accused or by the prosecutor. Then comes sec. 279 which runs as follows:—“Every objection taken to a juror shall be decided by the Court, and such decision shall be recorded and be final. If the objection is allowed, the place of such juror shall be supplied by any other juror attending in obedience to a summons and chosen in manner provided by sec. 276, or if there is no such other person present, then by any other person present in the Court whose name is on the list of jurors, or whom the Court considers a proper person to serve on the jury, ??? that no objection to such juror ??? person is taken under sec. 278 and ???”
It is apparent that the object of the provisions in the Code to which we have just referred is to secure an impartial trial by rendering impossible any intentional selection of jurors to try a particular case any that an accused person has a right to Clair to be tried by a jiffy chosen with strict regard to all the safeguards provided in the Code to secure perfect impartiality. These being the guiding principles underlying these sections, we have to ascertain the true meaning of sec. 276. In our view there can be no doubt that the centre idea is to have a jury chosen by lot from the persons summoned to act as jurors. In other words, in ordinary cases, five persons are to be chosen by lot for the purpose of acting as a jury out of ten persons summoned to act as jurors. In murder trials as already noticed, seven or nine persona as the case may be, are to be chosen by ??? for the purpose of acting as a jury, out ??? 14 or 18 persons summoned to act as jurors. In case, however of a ??? of persons summoned, i.e, where the persons attending in obedience to the sum mouses are less than the numbers summoned, the number of jurors required ??? with the leave of the Court, be chose from such other persons as may be preset. It is this last clause which is the ??? of controversy in these appeals. What the true meaning of the words “???” and “chosen” in the second ??? to sec. 276? Does the word “required mean required to constitute the ??? for a jury, or does it mean require make up the minimum number of ??? which will render a choice of jurors by possible, or lastly does it mean required make up the minimum number of ??? summoned under sec. 326 to attend? Sec. 326 requires a definite minimum of ??? to be summoned for a particular case, and it is important to bear this in mind in ???