Stevens, J.:— The Appellant has been convicted of two offences under sec. 116 read with sec. 161 of the Indian Penal Code and has been sentenced for each of those offences to four months' rigorous imprisonment, the sentences to run concurrently. He has also been convicted of two offences under sec. 116 read with sec. 466 of the Code and has been sentenced for each of these offences to one year's rigorous imprisonment, these two sentences similarly to run concurrently. The trial at which the Appellant was convicted was held by jury.

Four grounds have been argued before us in appeal: first, that the jury was illegally chosen and that the trial was vitiated by that circumstance; secondly, that the Judge wrongfully refused to enforce the attendance of certain witnesses for the defence; thirdly, that the trial was had for misjoinder of charges; and fourthly, that in numerous particulars the Sessions Judge misdirected the jury.

We may say at once that we are of opinion that the first ground is a good ground; and it is, therefore, not necessary for us to go into the facts of the case or to consider particularly the other grounds of appeal.

We only think it right to notice for the future guidance of the learned Sessions Judge in respect of the second ground, that the reason given by him, in his order of the 12th February, 1902, for refusing to enforce the attendance of certain witnesses cited by the Appellant to prove enmity between the Appellant and one of the principal witnesses for the prosecution, was insufficient. The learned Judge referring apparently to matter which had been elicited in cross-examination, said:— “It is quite unnecessary to summon witnesses (1) and (2): it is needless to prove the alleged enmity: there is ample evidence on the record about this.” It was manifestly for the accused person whose interest was concerned and not for the Judge to say what amount of evidence it was proper to place before the jury in order to establish the case for the defence.

We further think it right, in justice to the learned Sessions Judge, to say with regard to the fourth ground of appeal, that in our opinion there was no misdirection and that the case was put before the jury fully, clearly and fairly.

We proceed to notice in detail the first ground of appeal.

The following is a statement of the facts so far as can be gathered from the notes recorded by the learned Sessions Judge in the beginning of the record. It appears that when the learned Sessions Judge came to Court on the day fixed for the trial of the case, only three jurors were in attendance. How this came to pass is not explained. Then nine other jurors were summoned from among the residents of the town, and eight of them appeared. The learned Sessions Judge records that “of them Moulvie Mahammad Ahmed and Babu Narendra Nath Gupta were the only two who did not allege relationship with the accused persons, or other such reasons, for not serving on the jury.” He accordingly invited those two gentlemen to serve on the jury. The learned Sessions Judge notices and overrules two objections which were taken on the part of the accused persons to Moulvie Mahammad Ahmed. The decision of the learned Sessions Judge on those objections was of course final. The learned Sessions Judge also notices that one of the gentlemen summoned to serve on the jury was also objected to by the Government pleader, as being an intimate friend of the first accused, and he was accordingly “told that he could go;” but this gentleman's name does not appear.

The law relating to the summoning of jurors is contained in sec. 326 of the Code of Criminal Procedure. The first sub-section provides for the sending of a letter to the District Magistrate requesting him to summon as many persons as seem to the Sessions Judge to be needed for trials by jury at the ensuing sessions, the number to be summoned not being less than double the number required for any such trial. The second sub-section is as follows:— “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.”

The procedure for the choosing of jurors at the time of the trial is provided as follows by sec. 276 of the Code (we refer only to so much of the section as is applicable to the present case): “The jurors shall be chosen by lot from the persons summoned to act as such * * * * * * 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.”

Sec. 277 provides that “as each juror is chosen, his name shall be called out, and, upon his appearance, the accused shall be asked if he objects to be tried by such juror. (2) Objection may then be taken to such juror by the accused or by the prosecution, and the grounds of objection shall be stated.”

Sec. 279, sub-sec. (1) provides that “every objection taken to a juror shall be decided by the Court and such decision shall be recorded and be final.” The second sub-section provides that “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 juror 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: provided that no objection to such juror or other person is taken under sec. 278 and allowed.”

It appears to us that the proceedings of the learned Sessions Judge in choosing the jury in the present case were grossly irregular with reference to the provisions of the law which we have noticed.

In the first place, the fact noticed by the Sessions Judge that the jurors were summoned from among the residents of the town on the day fixed for the trial seems to imply that the persons to be summoned were specially selected and were not summoned after being chosen, as the law requires, by lot from the whole of the persons liable to serve on the jury. If the learned Sessions Judge was unable to obtain a panel in the manner provided by the second clause of the proviso to sec. 276, from such persons as might be present in Court, it was his duty to postpone the trial and to summon a sufficient number of jurors chosen by lot in the manner provided by sub-sec. (2) of sec. 326, from among the whole body of persons who were liable to serve as jurors.

The next irregularity which appears on the face of the proceedings is that, instead of at once proceeding to choose by lot from among the jurors who were present, subject to the making of objections in accordance with the provisions of sec. 277, and deciding and recording his decision as to each person objected to as provided by sec. 279, the learned Sessions Judge seems to have at once exempted most of those persons merely on their own representations and not to have drawn them by lot at all. With the exception of Moulvie Mahammad Ahmed they are not even named, nor is a reason stated as against each of them, nor is any formal decision recorded. Apparently there was no decision upon objection taken except in the case of Moulvie Mahammad Ahmed, who is named and who was objected to on behalf of the accused persons, and one other gentleman objected to on behalf of the Crown, whose name is not stated.

If the provisions of law which we have noticed be considered, it will be evident that the Legislature has taken special care to render impossible any intentional selection of jurors to try a particular case. In the first place the persons who are to be summoned to act upon the jury are drawn by lot; and then, again, when they appear, the jurors who are to try a particular case are chosen in the same manner from amongst the persons summoned. The reasons for this procedure are sufficiently obvious.

It has been objected for the Crown that the procedure of the learned Sessions Judge in disregard of these provisions of the law was a mere irregularity which is cured by the provisions of sec. 537 of the Code of Criminal Procedure and we have been referred as authority for this proposition to the case of The Empress v. Jhubboo Mahton(1). We think it unnecessary to say more with reference to that case than this, that it can apparently be distinguished from the case now before us in this way,—that it does not appear, so far as can be gathered from the report that in that case objection was taken at the time to the selection of the jurors, as was done in the present case.

In our view the erroneous procedure of the learned Sessions Judge does not amount to a mere irregularity in form. It appears to us that the irregularity was of a very grave and material nature, inasmuch as it affected the proper constitution of the Court. The Appellant had a right to claim to be tried by a jury chosen with strict regard to all the safeguards that the Legislature has provided in order to secure perfect impartiality. He did, in fact, assert that claim at the proper time; but his objection was overruled, and we think that he has consequently not been tried according to law.

The present conviction and sentence must therefore be set aside.

We should ordinarily in such circumstances consider that our proper course would be to direct a retrial with a jury properly constituted; but we think that we are bound to take notice of the fact that in dealing with a reference made by the learned Sessions Judge under the provisions of sec. 307 of the Code of Criminal Procedure with regard to two persons against whom a verdict of acquittal was recorded in the same case, this Court has recently acquitted those persons upon the merits of the case as disclosed in the evidence. In these circumstances we think that it would not be proper for us to direct a retrial of the present Appellant. We therefore direct that the Appellant be released from his bail.

Mitra, J.— I am of the same opinion. I only wish to add that I have gone through the evidence on the record with, a view to ascertain whether we should direct a retrial. The conclusion I have arrived at is that the evidence is quite insufficient for a conviction.

The view I take is in consonance with the view taken by the learned Judges who decided the reference under sec. 307, C. Cr. P., in the case of the two accused who were tried by the Sessions Judge on the same evidence.

Conviction set aside.