1. The objection having now been taken, must, after the short consideration I have been able to give it, I think, be allowed. Section 33 of the High Courts Criminal Procedure Act (X of 1875) enacts that 'The jury shall consist of nine persons, who shall be chosen by lot from the persons summoned to act as jurors.'
2. Section 39 enacts that, save as therein provided, the High Courts shall retain all their present powers respecting the summoning empannelling; qualification, challenging and service of jurors, and shall have power to make such rules on these subjects (consistent with the provisions of the Act) as seem to them to be proper; and that 'all rules relating to jurors now in force in the same High Courts shall (so far as they are consistent with this Act) remain in force until repealed or altered by new rules made under this section.'
3. The rule as to ballotting for petty juries, which was made in 1842, is to be found at p. 155 of the Collection of Rules and Orders of the Supreme Court of Bombay printed for Government in 1852--a collection which, as appears from the preface, was compiled by Mr. McKenzie, the Clerk of the then Chief Justice, Sir Erskine Perry, 'under his Lordship's guidance, and with the assistance of the officers of the Court.' That rule and the others contained in the collection, relating to juries, were framed under the powers given to the Supreme Court by the Statute 7 Geo. IV, c. 37, 'An Act to regulate the appointment of juries in the Bast Indies,' Section 2.
4. The rule as to ballotting for petty juries refers to the one next preceding it, as to the ballotting for grand juries, and I will, therefore, read both of them:
XI.--Ballotting Grand Jury.
521.--The name of each man who shall be summoned for the Grand Jury with the place of his abode and addition shall be written on a distinct piece of paper or card, such pieces of paper or card being all as nearly as may be of equal size, and shall be delivered by the Under-Sheriff unto the Clerk of the Crown, and shall by him be put together in a box, and he shall from the said box in open Court draw the said pieces of paper, or card, indiscriminately one after the other, and the names of the first twenty-three that shall be drawn out and appear, except such as shall be excused by the Court for good and sufficient reason, shall act and be the Grand Jury for that sessions.
XII.--Ballotting Petty Jury.
522.-The name of each man who shall be summoned for the Petty Jury with his place of abode and addition shall be written and delivered to the Clerk of the Crown as aforesaid and placed in a box, and the said names shall be drawn as aforesaid, and the twelve persons whose names shall be first drawn, of whom six shall be British subjects, that shall appear and not be challenged or set aside or excused, shall form the Petty Jury on each trial: provided also, that on the trial of any person who professes the Christian religion, the twelve persons professing that religion whose names shall be first drawn that shall appear and shall not be challenged or set aside or excused shall form the Petty Jury on such trial.
5. Since I first practised in the late Supreme Court (Jan. 1861), the practice at the Criminal Sessions, until the coming into operation of Act X of 1875, was to have separate ballot boxes, or rather two long boxes, the ones now in Court, each containing three compartments, and marked on the outside 'Europeans,' 'Indo-Britons,' 'Portuguese,' Parsees,' 'Hindoos,' 'Mahomedans.' The first six names were drawn from the European compartment, then three from the compartments marked Indo-Britons and Portuguese and one from each of the three remaining compartments. Since juries of nine were established in 1875, the practice has been to draw the first five names out of the European compartment, and the four others from the other compartments.
6. I am not aware that the rule I have quoted has ever been varied or abolished by any subsequent rule, though the practice seems scarcely to have been in strict accordance with it. Section 49 of Act X of 1875, however, says that all rules relating to juries now in force in the High Courts shall (so far as they are consistent with the Act) remain in force until repealed or altered by new rules made under that section. That section preserves the old rules, but it does not apparently preserve any practice which may have sprung up inconsistent with them.
7. It is, of course, unnecessary to give any opinion as to the validity of the mode of ballotting up to the present time.
8. Looking, therefore, at the two rules of 1842, which I have cited, and at Section 33 of Act X of 1875, it appears to me that the nine persons who are to be chosen by lot to form the jury ought to be selected from the entire number of persons summoned to actas jurors, and that this selection, which is to be 'by lot,' ought to be made from one box and not from six boxes. Such a mode of selection is more in accordance with the provisions of the new Act and the rule of 1842 than the mode hitherto adopted, and I accordingly direct that the names of the persons of all nationalities be put into one box, and that nine names be drawn out indiscriminately to form a jury for the trial of the present case.
Note furnished by Mr. Justice Bayley to the Reporter.
9. In the Charter, dated 26th March 1774, of the Supreme Court at Fort William, Clause 19 (2 Morley's Digest, page 570), and in the Charter, dated 26th December 1800, of the Supreme Court at Madras, Clause 33 (2 Morley's Digest, page 615), the petty juries to be summoned are to be 'other good and sufficient men being Subjects of Great Britain of us, our heirs or successors, and resident in the said town of Calcutta.' and 'other good and sufficient men, being persons heretofore described and distinguished as British Subjects of us, our heirs and successors, and resident in Fort St. George or the said town of Madras or the limits thereof or the factories subordinate thereto.'
10. In the Charter, dated 8th December 1823, establishing the Supreme Court of Bombay, Clause 43 (2 Morley's Digest, page 667) the petty juries to be summoned are to be 'other good and sufficient men, being persons so heretofore described and distinguished as British Subjects of us, our heirs and successors, and resident in the said town or island of Bombay or the limits thereof, or the factories subordinate thereto.'
11. The provisions of the Statute, 7 Geo. IV, c. 37, under which the jury rules of 1842 were made by the late Supreme Court, are important.
12. It recites that by the 13th Geo. III, c. 63, it was among other things enacted that all offences and misdemeanors, which should be laid, tried, and inquired of, in the Supreme Court at Fort William, should be tried by a jury of British subjects, resident in the town of Calcutta, and not otherwise; and that it was expedient that the right and duty of serving on juries within the limits of the local jurisdiction of the several Supreme Courts at Calcutta, Madras, and Bombay should be further extended. It was enacted (section 1) 'That all good and sufficient persons, resident within the limits of the several towns of Calcutta, Madras and Bombay, and not being the subjects of any Foreign State, shall, according to such rules and subject to such qualifications as shall be fixed in manner hereinafter mentioned, be deemed capable of serving as Jurors on Grand or Petty Juries, and upon all other Inquests, and shall be liable to be summoned accordingly, anything in the said Act or in any other Act, Charter, or usage to the contrary notwithstanding.'
13. By Section 2 it was enacted 'That the respective Courts of Judicature at Calcutta, Madras, and Bombay shall have power from time to time to make and establish such rules with respect to the qualification, appointment, form of summoning, challenging, and service of such Jurors, and such other regulations relating thereto as they may respectively deem expedient and proper: provided always that copies of all such Rules and Regulations as shall be so made and established by such Courts of Judicature shall be certified under the hands and seals of the Judges of such Courts, to the President of the Board of Commissioners for the affairs of India, to be laid before His Majesty for His Royal approbation, correction, or refusal; and such Rules and Regulations shall be observed until the same shall be repealed or varied, and in the last case with such variation as shall be made therein.'
14. By Section 3 (and last) it was enacted 'That the Grand Juries in all cases, and all juries for the trial of persons professing the Christian religion, shall consist wholly of persons professing the Christian religion.'
15. The last cited Section (3) was from and after the 1st July 1832 repealed by the Statute 2 and 3 William IV, c. 117, Section 2.
16. Mr. Justice Bayley has inquired, but has been unable to discover that any rules have been made since 1842, altering the mode of ballotting for petty juries prescribed in the Rule (No. XII, 522) quoted in the Report. He apprehends that such rule was in force when the 'High Courts Criminal Procedure Act, 1875' came into operation on the 1st May 1875.
17. In the rules framed by the late Supreme Court of Bombay in 1828, under the 7th Geo. IV, c. 37, as to the qualification and exemption of jurors (Nos. 508, 509, page 150 of the Collection of Rules and Orders of the Supreme Court), no distinction is taken between Europeans and Natives; but every man, except as therein excepted, between the ages of 21 and 60, who is a resident householder within the town and island of Bombay, if possessed of the property qualification there stated 'is qualified and liable to serve on Juries. But persons who do not understand the English language shall not serve on Juries nor be inserted in the list.'
18. The rule made in 1842, as to the precept to the Sheriff to summon jurors (No. 518, page 154 of the Collection of Rules and Orders of the Supreme Court) directs that 'The Clerk of the Crown shall, fourteen days at least before each Sessions of Oyer and Terminer, issue his precept to the Sheriff, commanding him to summon thirty of the principal inhabitants, resident in the town and island of Bombay, being Subjects of the King, to attend as a Grand Jury, and forty-eight good and sufficient men, being Subjects of the King, resident within the island of Bombay, or the factories subordinate thereto, to serve on the Petty Jury.'
19. And by the next succeeding Rule (519) one-half of those summoned to serve as petty jurors shall be (see 1 Morley's Digest, page 89, British subject, Note 1) British subjects.