Judgement

Appeal (No. 21 of 1933) by special leave from an order of the High Court (June 28, 1932) confirming an order of the Sessions Judge of Patna whereby the appellants were convicted of penal offences and sentenced.

The appellants were convicted under s. 302 (murder) and s. 148 (rioting armed with deadly weapons) of the Indian Penal Code. Appellants Nos. 1 to 7 were sentenced to death, and appellant No. 8 to transportation for life. Appeals to the High Court were dismissed. The sentences of death on appellants Nos. 2, 3, 6 and 7 had been commuted to transportation for life.

The facts relevant to the present appeal, which was based upon the alleged inability of one of the jury of seven to understand the English language, are stated in the judgment of the Judicial Committee.

The following provisions of the Code of Criminal Procedure were material —

By s. 274, sub-s. 2, the jury, in the case of the trial in question, was to " consist of not less than seven persons and, if practicable, of nine persons."

By s. 278 " Any objection taken to a juror on any of the following grounds, if made out to the satisfaction of the Court, shall be allowed . . . . (g) his inability to understand the language in which the evidence is given, or when such evidence is interpreted, the language in which it is interpreted."

By s. 306, sub-s. 1 " When in a case tried before the Court of Session the Judge does not think it necessary to express disagreement with the verdict of the jurors or of a majority of the jurors, he shall give judgment accordingly."

1933. July 3. Pritt K.C. and Sidney Smith for the appellants. It has been intimated that in view of the report of the High Court the Crown concedes that the convictions and sentences should not stand. It is submitted that the order on appeal should merely set them aside and should not provide for a new trial. The appellants cannot be proceeded against again, there having already been a trial.

[LORD THANKERTON. The statutory jury being seven, was there in the circumstances a jury or a trial ?]

The juror in question was qualified to sit, the error was in not ascertaining and providing for his ignorance of English.

[LORD ATKIN. The result of what you say is that the men have been committed and charged, but have not been tried in accordance with the ordinary procedure. The present view of the Board is that there has been a trial coram non judice. We might leave it to the Court in India to decide what the proper relief is.]

Counsel for the Crown were called on.

Dunne K.C. and Wallach for the respondent. It is conceded that the convictions and sentences should not stand. The true view is that the appellants have not been tried. The High Court should be put back into the position in which it was under s. 423 of the Code of Criminal Procedure and left to make such order as they think right. That is much what was done in Sayyapureddi Chinayya v. The King-Emperor (( 1920) L. R. 48 I. A. 35.), a case in which the sentence exceeded the legal maximum ; it was there contended unsuccessfully that the High Court was functus officio.

[LORD ATKIN. Setting aside a conviction on the ground of irregularity does not give rise to a plea of res judicata. But if the conviction is set aside, can the High Court be reinvested with jurisdiction to deal with the matter ?]

It is submitted that the order of the High Court could be set aside, and the case remitted to that Court to make the order which it ought to have made.

[LORD THANKERTON. If the convictions are set aside, is there anything to prevent a fresh trial upon the commitment ?]

It is submitted not. But we ask merely that there should be substituted for the order of the High Court an order setting aside the convictions and sending the cases back to that Court to deal with according to the law in India.

[LORD ATKIN. I am doubtful about the powers of this Board itself to advise an order for a new trial.]

In Jannokee Doss v. The King (( 1836) 1 Moo. I. A. 67.) a new trial wa