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CALCUTTA HIGH COURT
George Claus Rankin, C.J, Zahhadur Rahim Zahid Suhrawardy, J., Pearson, J., Page, J., Charu Chunder Ghose, J.
Emperor - Appellant
Versus
Erman Ali & Ors. - Respondent
Decided On : 09-01-1930
Jury Summoning - Criminal Procedure - Section 326, Section 274, Section 276, Section 277, Section 327 - The judgment discusses the requirements for summoning jurors, the standard for the number of jurors to be summoned, and the implications of non-compliance with these provisions. It emphasizes the need for strict compliance with the provisions of the Criminal Procedure Code in summoning jurors and highlights the importance of ensuring a fair and impartial jury selection process.
Fact of the Case:
The accused persons were tried for murder and an offence under Section 302 read with Section 149 of the Indian Penal Code. The trial Judge disagreed with the verdict of the Jury and referred the case to the High Court due to objections regarding the constitution of the Jury.
Finding of the Court:
The Court found that the trial was not rendered void due to the summoning of only 14 jurors instead of the required 18, as the accused was tried by the statutory number of jurors chosen by lot without objection or challenge. It emphasized that the trial was not a nullity and that objections should not be countenanced when the accused was not prejudiced by the proceedings.
Issues: The main issue was whether the trial was valid despite the summoning of only 14 jurors instead of the required 18, as mandated by the Criminal Procedure Code.
Ratio Decidendi: The Court held that the trial was not vitiated by the summoning of 14 jurors instead of 18, as the accused was tried by the statutory number of jurors chosen by lot without objection or challenge, and there was no proof of prejudice to the accused.
Final Decision: The Court answered the questions regarding the validity of the trial in the negative and remanded the case for disposal on the merits of the other questions which arose.
JUDGMENT
George Claus Rankin, C.J. - In this case there were 9 accused persons. One of them was charged with murder u/s 302 and the remaining 8 with an offence u/s 302 read with Section 149 of the Indian Penal Code. 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 of the Criminal Procedure Code. The learned Judge, disagreeing with the verdict of the Jury, referred the case to the High Court u/s 307 of the Criminal Procedure Code.
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 9 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 (i) 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 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 a 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 authorised by Section 327 and in the present case it has been followed.
6. u/s 274 of the Criminal Procedure Code, it is provided that where an accused person is charged with an offence punishable with death, the Jury shall consist of not less than 7 persons, and if practicable of 9 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 for 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 sub-section 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 failure to observe this standard, it results, whether from non-attendance of jurymen or otherwise, that a Jury of 9 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 tria
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