The empanelment of juries should follow a specific procedure, including a ballot among the summoned persons and a discretionary allowance for additional jurors from bystanders, to ensure a fair and impartial trial for the accused.

JUDGMENT

Page, J. - I have had an opportunity of reading the judgment which is going to be delivered by Mr. Justice Buckland with which I agree.

Buckland, J.

2. Under Ch. 7, Rule 5 of the Rules of the Court, the three appeals, Nos. 377, 468 and 302 of 1927, have been referred to a Full Bench for the purposes of a final determination of the con" struction to be put upon Prov. 2, Section 276, Criminal P.C. So far as the facts of these cases relate to the manner in which the juries were empanelled, they are set out in the order of reference as follows:

In appeal No. 377, the accused were charged u/s 147 and u/s 3i5 read with Section 149, I.P.C. Ten persons were summoned to serve on the jury. Of these ten, six persons attended. Of these six, it was ascertained that one was serving in the office of a society of which the Public Prosecutor was the President. An objection being taken to this individual, the objection "was: sustained, and he was discharged. This left five persons who had been summoned. The learned Judge chose one man from among the bystanders in Court, added his name to those of the five persons summoned, and from these six the jury of five was chosen by lot.

In appeal No. 468, the accused was charged u/s 302, I.P.C. The number of persons summoned does not appear from the affidavits, but it is agreed that seven jurors were present, two of whom were European gentlemen. These two were discharged on the ground that they did not understand Bengali. Two persons were chosen from among the bystanders and added to the five who remained, thus making a jury of seven. It is said that in these circumstances there was no choosing by lot.

In appeal No. 302, the charges were laid under Sections 301, 147 and 804 read with Section 149, I.P.C. Twelve persons had been summoned to serve on the jury. Seven of these attended, of whom one was excused. Out of the remaining six, five jurors were chosen by lot.

3. The questions which arise for determination in each case are : (1) Was the jury empanelled as required by law? (2) If not, must the convictions and sentences be set aside, and a new trial ordered?

4. The determination of the first of these two questions will depend in each case on the view taken of the proviso to be considered. Consideration of the second question only arises after the first has been determined.

5. Stating the matter broadly, there are two opposite views, which have been submitted, of the effect of the proviso. One is that in the event of there being a deficiency of persons summoned a sufficient number of persons from among those present may, with the leave of the Court, be added to the number of persons summoned who have attended, and that a. choice should then he made by lot from the composite body so formed.

6. The other view is that the choice by lot referred to at the beginning of the section is confined to a choice by lot from among the persons summoned, and that when the deficiency appears, the number of jurors required may be chosen from such other persons as may be present, and the jury thereby completed without any further drawing of lots.

7. Whichever view is the correct one, it is subject to the right of the prisoner to object to a juror. The sections relating to such right do not directly affect the construction of the proviso, but they may be considered for the purpose of arriving at its correct meaning.

8. The view first stated is that which has-been advanced on behalf of the appellants. The argument presented to us proceeds in the first instance from Section 326, which provides for summonses to be issued to the number of jurors required for the sessions, the member to be summoned not being less than double the number required for any trial.

Assuming a jury to consist of five at least ten persons must be summoned, and it is said that that figure is to be taken as the number of persons among whom lots are to be drawn for the purpose of choosing a jury. From this point it is argued that the words "deficiency of perso