The central legal point established in the judgment is the duty of the Judge to consider the practicability of having nine jurors, and the impact of the improper constitution of the jury on the legality of the trial.

JUDGMENT

S.K. Ghose, J. - The learned Additional District and Sessions Judge of the 3rd Court, Mymensingh, reports in his letter dated 5th January 1931, that Mr. R. M. Bhattacharjae who triad the Sessions case in question has since retired from service and it is not possible for him to say whether he considered if it was practicable to have nine jurors. He adds that the register of the list of jurors summoned shows that out of the number summoned only seven jurors were present and that all of them were empanelled.

2. Mr. Basu for the appellants has pointed out that this report does not touch the point at issue, namely that the learned Judge did not apply his mind to the question as to whether it was practicable to have nine jurors, and further that he did not consider the possibility, under Prov. 2, Section 276, Criminal P.C., of making up the deficiency by choosing from such other persons as might have been present. Mr. Bhattacharjee for the Crown contends that this section will not apply, because this is a case of special jurors, the learned Judge having by his order dated 29th March 1930, directed that the case should be tried by special jurors. He contends that Prov. 4, Section 276, comes into play and that this is independent of Prov. 2, by which the Court is given a discretion to choose from such other persons as may be present. In support of this contention Mr. Bhattacharjea has pointed out that Prov. 4, comes after Prov. 2, and is therefore not governed by the latter. It seems to me that an argument based on the collocation of the provisos, or even of the sections, cannot settle the point. For instance the provisions as to the framing of the jurors' list and of summoning them, which must necessarily in point of time come before the choosing of the jurors by lot, are embodied in Section 321 and the following sections and not in any sections coming before Section 276. In this connexion, a reference to the history of the relevant sections will not be out of place.

3. It is important to remember that there was no provision for the appointment of special jurors in the mufassil until 1896. In the Criminal Procedure Code, 1872 (Act 10 of 1872) Section 236 provides for an uneven number of jurors, not being less than three nor more than nine. Section 240 provides that the jurors shall be chosen by lot from the persons summoned; there is provision for supplying a deficiency similar to that in Prov. 2 to the present Section 276. But Section 243 of the Code of 1872 provides for making up a deficiency after objections and this is a provision which corresponds to the present Section 279. Then Act 10 of 1875 prescribed the procedure of the High Courts in the exercise of their original criminal jurisdiction. Oh. 5 of that Act deals with juries and it contains four sub-heads of which subhead (a) deals with juries generally; subhead (b) deals with juries in the Presidency towns and sub-head (c) deals with juries in the mufassil. Under the general sub-head (a) there is Section 33 which prescribes the number of jurors and then there is a proviso that in case of deficiency the number required may with the leave of the Court be chosen from such other persons as may be present. Obviously, this general provision applies to the case of special juries in the Presidency town such as is prescribed by Section 38 under sub-head (b). There is no provision for special juries in the mufassil. Section 56 provides for the supply of jurors where objections are allowed and this corresponds to the present Section 279. The Code of 1882, Act 10 of 1882, repealed both the Acts of 1872 and of 1875 and in this Code we get Section 276 with the three provisos as they stand now. But the fourth proviso was absent. The provision for special jurors in the mofussil was made by Act 13 of 1896. It introduced the second clause of Section 269 and the fourth proviso to Section 276 and by these two provisions it prescribed the appointment of special jurors in the mufassil. Thi