The main legal point established in the judgment is that the failure to empanel the required number of jurors as per the law can vitiate the trial, and the discretion of the judge in empanelling the jury is limited by the requirement to follow the statutory provisions.

JUDGMENT

Khundkar, J. - This is a reference u/s 374, Criminal P.C., for confirmation of a sentence of death passed on one Kishori Khanra, who was found guilty of murder by the unanimous verdict of a jury. Along with the reference there is an appeal by the condemned man. On behalf of the accused several points have been taken before us, but in the view I take, it is necessary to consider only the first of these. It is that the jury was not properly constituted, inasmuch as only seven persons were empanelled to serve on the jury, in violation of the proviso to Section 274(2), Criminal P.C. That proviso is in these terms:

Provided that, when any 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.

2. In the present case 18 persons were summoned as jurors for this particular trial, nine attended, and seven were empanelled. It is contended that, though it was practicable for the Judge to empanel a jury of nine, he in fact empanelled a jury consisting of a number less than nine, and this has vitiated the trial ab initio. In answer to this point the learned Deputy Legal Remembrancer has on behalf of the Crown, first argued that u/s 276, Criminal P.C., the jury has to be chosen by ballot, and that a ballot involves a selection of a certain number out of a larger number. As in the present case the total number of jurors present was no more than nine, it was not practicable to select nine by ballot. Section 274 and its proviso have been considered by this Court in a number of cases in which the offence charged was punishable with death. In Serajul Islam and Others Vs. Emperor, AIR 1928 Cal 645 persons were summoned to attend the Court as jurors. Of these eight appeared on the day of the trial, and from the eight who appeared, seven persons were chosen to act as the jury. It was held that the tribunal had not been legally constituted. In this case there had initially been a failure to comply with the provisions of Section 326 of the Code, because 12 persons were summoned as jurors for the case instead of 18. Rankin C.J. said:

The exact effect of that section I will not attempt, to define, but it, at least, sets a minimum standard for the number to be summoned.... In the present case only 12 jurors were summoned; and only eight persons appeared out of the 12. In these circumstances the concluding words of Section 274 would take no operation whatsoever. Now so far as can be seen, it was quite practicable to have this case tried by a jury of nine; but the manner in which the jury was empanelled and the insufficiency of the number of jurors summoned defeated the intention of the section.... I am of opinion that, contrary to the intention of the Code and the standard set by the Legislature, an unreasonably small number of jurors was summoned with the result that it was not possible to have a jury of nine and that the proceedings ought not to be allowed to stand.

3. As I read it, the ratio of this decision is that it was practicable to empanel a jury of nine, though eight jurors only attended, but this was not done, and two circumstances contributed to the failure to do so; first, insufficiency in the number summoned, and second, the manner in which the jury was empanelled - the allusion being to the omission to make an attempt to supply the deficiency by the method indicated in Clause (2) of the proviso to Section 276 i.e. by taking persons from those present in the Court precincts. The decision does not say that failure to summon, u/s 326, double the number required, is in itself a fatal defect. In Kailashpati Upadhya and Another Vs. Gopi Koeri, AIR 1930 Cal 60 , in which the case in Serajul Islam and Others Vs. Emperor, AIR 1928 Cal 645 was followed, the facts were slightly different. Fourteen jurors had been summoned, eleven attended in obedience to the summons, and of these seven were empanelled as the jury. It was held that as it was pract