The main legal point established in the judgment is the interpretation of Section 276 of the Criminal Procedure Code regarding the empanelling of the jury and the legality of the trial based on the procedure followed.

JUDGMENT

Suhrawardy, J. - This is an appeal by seven persons all of whom have been convicted u/s 147, Indian Penal Code, and sentenced to two years' and one year's rigorous imprisonment and four of them (Appellants Nos. 1 to 4) have also been convicted u/s 325, Indian Penal Code and sentenced to four and five years' rigorous imprisonment and a fine of Rs. 200 each, in default one and a half years' rigorous imprisonment the sentences of imprisonment to run concurrently. They were unanimously found guilty by a jury of five and convicted as above. The real ground upon which this appeal is based is with regard to the irregularity complained of by the accused as to the empanelling of the jury. It appears from a reference to the order-sheet of the Assistant Sessions Judge that of the jurors that were summoned to act only five were present on the day on which the case against the accused, was taken up. The learned Judge thereupon passed the following order:

Among the jurors summoned five jurors are only present and they are chosen jurors neither party having got any objection.

2. It has been represented by the Grown that the five jurors who acted in the present case were selected to act with the consent of both parties. It seams so, but it does not materially affect the question that has been raised which is one of illegality in the trial. The ground stressed is that jurors were not selected according to the procedure laid down in the Criminal P.C., and therefore the Court was not rightly constituted and hence the trial must be held to be no trial under the law. It is argued that u/s 276, Criminal P.C., the jurors must be chosen by lot and the Judge had no authority to ask the five persons present to act as jurors without choosing them by lot; and in support of this contention reference has been made to the recently decided case of Bhola Nath Hazra and Others Vs. Emperor, AIR 1927 Cal 242 of which the facts are similar. In that case what happened was that 12 jurors were summoned to attend but only five appeared and those I were empanelled as jurors. The learned I Judges (Chotzner and Duval, JJ.) who decided that case held that the procedure followed was in contravention of Section 276 and therefore the trial was illegal. I regret very much to say that I cannot bring myself to accept the decision as correct on the materials on which it is based. I respectfully submit that the learned Judges who decided that case did not give a correct interpretation, to the previous decisions of this Court which lay down a contrary rule.

3. In Empress v. Jhubboo [1892] 8 Cal. 739, the Sessions Judge himself selected the jurors instead of choosing them by lot; but as no objection was taken by the appellant in that case at the trial Field, J., thought that the objection was not one which ought to be entertained for the purpose of interfering with the verdict in view of the provisions of Section 283 of the Code of Criminal Procedure (Act 10 of 1872) corresponding to Section 537 of the present Code. This case was considered in Brojendra Lal Sirkar v. King-Emperor 7 C.W.N. 188. There what happened was that for some reason or other on the date fixed for the trial of the case only three jurors were in attendance. Thereupon nine other persons were summoned from among the residents of the town and eight of them appeared. Two of them were found to have no relationship with the accused persons and were asked by the Judge to act as jurors. On these facts Stevens, J., was of opinion that the trial was contrary to law and so invalid.

4. In the first place, according to the learned Judge, the procedure laid down by Section 326, Criminal P.C., was not followed in not subsequently summoning the jurors out of the jury list but-from the residents of the town, on the day fixed for the trial. It appears that the persons summoned were specially selected and were not summoned after being chosen as the law requires by lot from the list of parsons liable to serve on the jury. The