The main legal point established in the judgment is the importance of ensuring a fair and impartial jury selection process, highlighting the consequences of breaching the summoning requirements and emphasizing that technical objections should not overshadow the substance and merits of a case.

JUDGMENT

Rankin, C.J. - In this case there were nine accused persons. One of them was charged with murder u/s 302 and the remaining eight with an offence u/s 302 read with Section 149, I.P.C. They were tried by the Sessions Judge of Bakarganj with a jury of nine persons chosen by lot from among 14 persons who had been summoned to serve as jurors under the provisions of Section 326, Criminal P.C. The learned Judge, disagreeing with the verdict of the jury, referred the case to the High Court u/s 307, Criminal P.C.

2. At the hearing of the reference it was objected by the learned advocate for the accused that the jury had not been constituted in accordance with law and that accordingly the proceedings before the trial Judge should be set aside altogether. The objection taken is not that the number of persons who served on the jury, namely nine, was not the correct number u/s 274, but that u/s 326 the number of persons to be summoned was not less than 18 whereas summonses were sent to 14 persons and no more.

3. By Section 326, it is provided:

326(1) The Sessions Judge shall 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 said revised list or the said 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.

4. Upon this subsection, the first thing to notice is that it purports to prescribe something that is "ordinarily" to be done by the Sessions Judge. He is to request the District Magistrate to summon as many persons as seem to the Sessions judge to be needed for trials by Jury. The subsection envisages him as having fixed time for holding the Sessions and the number referred to is the number not for any particular trial but for the trials by jury which are to take place at the Sessions. The minimum number to which the subsection refers is not less than double the number required for any such trial, i.e., for any one of the trials to take place at the Sessions.

5. It has been found convenient in Bengal and is a practice generally adopted, to fix dates for each particular case to be tried before the Sessions Judge and to summon a certain number of persons to attend on the date fixed in order to provide a jury for that particular case. This practice is authorized by Section 327, and in the pre sent case it has been followed.

6. u/s 274, Criminal P.C., it is provided that where an 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.

7. Now, in dealing with these matters this Court has by its decisions from time to time laid down four things. The first is that although a jury is summoned for a particular case, the number to be summoned should always be double the number required or the trial. If the summoning of persons to act as jurymen for the whole of a Sessions as contemplated by Section 326 is not to be carried out, nevertheless the direction "not less than double the number required for any such trial" can and should be carried out by adopting that minimum in each individual case. The standard set by the subsection should not be lowered by reason that the services of the persons summoned are in practice to be utilized for one case only : Serajul Islam and Others Vs. Emperor, AIR 1928 Cal 645 .

8. The second thing which this Court has laid down is that if by reason of as failure to observe this standard, it results, whether from non-attendance of jurymen or otherwise, that a jury of nine persons cannot be empanelled for the trial of an accused charged with an offence which is punishable with death, this fact will not entitle the Sessions Judge to proceed to trial in such a case with a jury of seven in other words th