1. The applicants were tried along with certain other accused for certain offences including an offence under Section 436, Indian Penal Code, 1860, i.e. arson, in the Court of the Additional Sessions Judge, Thana, the trial being by jury. Under an erroneous view that the Enhancement of Penalties Ordinance, 1942, applied to Kolaba District, from which the case came, the Judge empanelled a jury of nine persons under 8. 274 of the Criminal Procedure Code, 1898, as the Ordinance made the offence under Section 436 punishable with death. Six of the accused were convicted and three acquitted. The acquitted persons are the present petitioners Nos. 1, 2 and 3 and petitioner No. 4 is one of those convicted. Five out of the six convicted accused appealed, the one who did not appeal being petitioner No. 4. There was also no appeal against the acquittal of the present petitioners Nos. 1, 2 and 3. This Court found that the Enhancement of Penalties Ordinance had not been made applicable to Kolaba district and that, therefore, the jury should have consisted of five and not nine persons, Section 274(2) provides that in trials by jury before the Court of Session the jury shall consist of such uneven number, not being less than five or more than nine, as the Provincial Government may direct; and the Provincial Government by a notification dated January 24, 1939, had directed that the jury for the trial before the Court of Session in the Kolaba district of offences punishable with transportation for life or imprisonment for ten years should consist of five persons. As the trial had taken place before a jury in excess of the legal number, it was held that the trial was ' necessarily a nulltty '. In support of that proposition the Court relied on Emperor v. George Booth I.L.R. (1903) All. 211. Accordingly the appellants' conviction was set aside and they were ordered to be released, and Government were left to take such further action in the way of a new trial or otherwise as they might think fit. As to those of the accused who were not before the Court in 'that appeal, Beaumont C. J. remarked (p. 903):-
The accused who have been acquitted of any offence are not before the Court, and are not interested in the validity of the conviction of their co-accused. If they are prosecuted again, they may desire to rely upon Section 403 of the Criminal Procedure Code. No doubt such a contention may be difficult to reconcile with the judgment which we are giving to-day, but at the same time persons who are not before us are not, of course, technically bound by our judgment.
All we do is to set aside the conviction of the appellants on the ground that the trial was held by a Court not competent to hold it.
Thereafter Government passed orders that all the accused, including the present applicants, should be tried by the Court of Session at Thana. An application was made on behalf of the present applicants to the Sessions Court under Section 403 of the Criminal Procedure Code contending that unless the acquittal of three of them and the conviction of the fourth applicant were set aside by the High Court they could not again be tried. There is no question that the present trial is in respect of the same offence as was the subject-matter of the earlier trial. The learned Sessions Judge took the iview that the earlier trial was by a Court without jurisdiction and that the proceedings thereof were, therefore, void. He relied for this proposition on Queen-Empress v. Husein Gaibu I.L.R. (1884) 8 Bom. 307, Shankar Tulsiram v. Kundlik Anyaba I.L.R. (1928) 53 Bom. 69 and the remarks of Beaumont C. J. in Emperor v. Pandu Kusha : (1943)45BOMLR902 : that the earlier trial having been by a jury in excess of the legal number, it was necessarily a nullity. Accordingly, he came to the conclusion that the Court before which the earlier trial had taken place not having been properly constituted, that is, not having been of competent jurisdiction within the meaning of Section 403 of the Criminal Procedure Code, there was no bar to the present trial under that section.
2. Mr. Gajendragadkar who appeared on behalf of the appellants in the case reported in Emperor v. Pandu Kusha now appears on behalf of the applicants. He contends that though it was held that the earlier trial was ' necessarily a nullity ' that cannot mean that it was a nullity in the sense that the Court had ab inilio no jurisdiction to try the case ; and he has sought to distinguish this case from Queen-Empress v. Husein Gaibu and Shankar Tulsiram v. Kundlik Anyaba on the ground that in those cases, on which the learned Sessions Judge has relied, there was ab initio want of jurisdiction in the Courts concerned and that, therefore, in those cases it was proper to hold that there was no bar under Section 403. With regard to the present case his contention is that in the earlier trial the Court did have jurisdiction and that what happened was the proceedings were seriously vitiated by the error committed by the presiding Judge in empanelling a jury of nine persons. The proceedings, according to him, were, therefore, not void in the sense in which that expression has been used in Section 530 of the Code of Criminal Procedure, but the irregularity committed was so serious that an appellate Court was bound to set aside the conviction. He, therefore, contends that it should be held that the present trial of the applicants is barred under 3. 403, the Court before which the earlier trial was conducted having been of competent jurisdiction.
3. Sub-section (1) of Section 403 reads thus :-
A person who has once been tried by a Court of competent jurisdiction for an offence and convicW or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237.
The first question that arises is, what is meant by the expression 'Court'. The learned Sessions Judge appears to have thought that the' Court which tried tke earlief case was not properly constituted, having apparently taken the view that the Court includes the jury. This indeed is the contention which has been pressed before us by the learned Government Pleader. In support of this contention he has relied on Emperor v. George Booth I.L.R. (1903) All. 211 King Emperor v. Jayram I.L.R. (1901) 25 Bom. 694 and Dattatraya Sadashiv Karve v. Emperor . In Emperor v. George Booth, the Local Government had by notification under Section 274 of the Code of Criminal Procedure directed that in trials by jury before a Court of Session the jury should consist of five, and it was held that a trial under Section 451 of the Code with a jury consisting of seven persons was held before a tribunal not properly constituted. King Emperor v. Jayram was a case in which the trial being with the aid of assessors and one of the assessors being ill, the trial commenced and ended with only one assessor; and it was held that the Court of Session had not been properly constituted and that there had been no legal trial. In Dattatraya Sadashiv Karve v. Emperor there was a reference under Section 307 and in the order of reference Niyogi and Bose JJ. pointed out that the jury are invested with a special status and given special powers;, and that the ultimate responsibility for all decisions within their sphere is meant to be theirs and theirs alone, and further that if the Judge disagrees, then his hands are very considerably tied. The question, however, that arose was whether the powers of the High Court on a reference under Section 307 are as extensive as its powers in an appeal from acquittal or a conviction when the trial is by jury or whether the High Court's powers are wider so that it can come to a conclusion different from the verdict of the jury on facts. In Section 307 the word used is ' Judge ' and not the Court. It is clear, therefore, that the precise question we are now concerned with did not arise in that case. The learned Government Header has further relied on the wording of Section 268 : '' All trials before a Court of Session shall be either by jury, or with the aid of assessors ', and he has contended that where the trial is by jury, it is the jury which really try the case, or at least the Judge and the jury functioning together. Reference may also be made to the language used in the proviso to Section 272, ' The same jury may try, or the same assessors may aid in the trial of, as many accused persons....' If the Court consists of the Judge and the jury together, it must be held that in this case the Court which tried the earlier case was not properly constituted. The expression ' Court of Justice ' is defined in Section 20 of the Indian Penal Code as a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially. There is no reference in this section to any jury. The parts of the Code of Criminal Procedure which are concerned with trials by jury, namely Sections 267 to 283 and Sections 286 to 308, contain several references to the Court and the jury. On a reading of those sections it appears to us clear that the intention of the Legislature was to draw a distinction between the Court and the jury, the distinction appearing most marked inter alia in Sections 280, 293 and 303. Sub-section (2) of Section 280 lays down that the foreman shall preside in the debates of the jury, deliver the verdict of the jury, and ask any information from the Court that is required by the jury or any of the jurors. Section 293 relates to the viewing by the jury or assessors of the place in which the offence charged is alleged to have been committed and it says that whenever the Court thinks that the jury or assessors should view the place in which the offence charged is alleged to have been committed, or any other place in which any other transaction material to the trial is alleged to have occurred, the Court shall make an order to that effect, and the jury or assessors shall be conducted in a body, under the care of an officer of the Court, to such place which shall be shown to them by a person appointed by the Court. Under Section 303 unless otherwise ordered by the Court, the jury shall return a verdict on all the charges on which the accused is tried, and' the Judge may ask them such questions as are necessary to ascertain what their verdict is. The use of the word ' Court' in the first part of the section is clearly intended to exclude the jury. Reference in this connection may also usefully be made to Sections 271, 272, 276, 278 and 279. It seems to us, therefore, that the language in the Criminal Procedure Code does not warrant the inference that the jury is a constituent element of the Court. It is also to be observed that before the stage is reached when the Court proceeds to .choose the jury uqder Section 276, when the Court is ready to commence the trial and the accused has appeared or has been brought before it, the charge is to be read out in Court; and explained to him, and he is to be asked whether he is guilty of the offence charged or claims to be tried. If the accused pleads guilty, the plea must be recorded and he must be convicted thereon (Section 271). If, however, the accused refuses to, or does not plead or if he claims to be tried, the Court then proceeds to choose jurors or assessors under the provisions of the Code (Section 272). This procedure was complied with in the trial of the applicants. It seems hardly possible to say that when the accused were questioned under Section 271 or when their pleas were recorded, the Court had no jurisdiction to do so. The Court thus had become seized of the case at a stage earlier than that at which the jury were to be chosen ; and if the Court had obtained jurisdiction at such earlier stage, seems to us difficult to say that on account of some error, however serious, committed by the presiding Judge in the choosing of the jury the Court ceased to be a Court of competent jurisdiction for the offence which was being tried. In King-Emperor v. Krishna Ayyar I.L.R. (1901) Mad. 641 five persons were charged before a Sessions Judge, sitting with assessors, with having committed dacoity with murder, under Section 396, Indian Penal Code, and a sixth with abetting them. The abettor was acquitted. He was, however, subsequently charged before the Sessions Judge, sitting with a jury, with receiving stolen property knowing that it had been obtained by dacoity, under Section 412 of the Indian Penal Code. The jury returned a verdict of guilty, and the accused was convicted and sentenced. The facts.on which the accused was convicted of receiving stolen property were the same as those upon which he had been acquitted of abetment of dacoity with murder, the dacoity by which the stolen property alleged to have been received being the same as that which had formed the subject of the previous charge. It was contended that the Court had power to try the accused a second time under Sub-section (4) of Section 403 of the Criminal Procedure Code, inasmuch as a charge of receiving stolen property must be tried by a jury ; and that in consequence the Court by which the accused had first been tried was not a Court competent to try the present case. It was held that the conviction was bad as the Court of Session was competent to try the offence of receiving stolen property, and that the charge of receiving stolen property not being a charge triable with the aid of assessors, it was open to the Judge to empanel a jury to try it. It was also remarked that even if the Judge had proceeded to try the case with the aid of assessors before the Court had recorded its finding, the trial would not have been invalid on that ground only, and if the Judge had convicted, the conviction could not have been impeached (Section 536(2) of the Code of Criminal Procedure). It is clear that in this case the expressions 'Court' and 'Judge' were regarded as interchangeable terms in the context of Section 403.
4. In Emperor v. Pmdu Kusha the expression ' nullity ' has no doubt been used, but it is also clear that it was not held that the proceedings were entirely void on account of any reason similar to the grounds mentioned in Section 530 of the Criminal Procedure Code. All that appears to have been meant was that the proceedings were so seriously vitiated by the jury being in excess of the legal number that the conviction of the appellants could not possibly be sustained- It is true that reliance was placed on Emperor v. George Booth, in which on the facts of that case it was held that the tribunal had not been properly constituted. The expression 'tribunal', however, is not one which is to be found in the Criminal Procedure Code ; it was no doubt meant to refer to the conjunction of the Judge and the jury functioning together, and cannot be regarded as a phraseology strictly in conformity with the language of the Code. The very fact that in Pmdu Kusha's case their Lordships went out of their way to make certain observations with regard to the accused persons who were not before them and specifically said that they were not bound by the judgment appears tcfshow, in our opinion, that the expression ' nullity ' used by them was not intended to be taken in all its implications. Beaumont C. J, took care, further, to word the actual order that was made in these words, ' All we do is set aside the conviction of the appellants on the ground that the trial was held by a Court not competent to hold it'. These observations were no doubt obiter, but they give an indication, in our opinion, of the meaning intended by the use of the expression ' nullity ' in the judgment;
5. In our opinion the two cases relied on by the learned Sessions Judge do not afford any guidance on the point under consideration. In the first of these cases, Queen-Empress v. Husein Gctibu, a Second Class Magistrate had tried the accused under Section 417, Indian Penal Code, and acquitted him, and it was found on the facts that the offence would fall'under Section 420, Indian Penal Code, and was beyond the Second Class Magistrate's jurisdiction. Accordingly, the District Magistrate made a reference recommending that the proceedings being illegal be quashed and the accused be put on trial for such offence as he appeared to have committed. It was held that the Magistrate who had acquitted the accused having no jurisdiction, his proceedings were simply void under Section 530 of the Code of Criminal Procedure and that there was no reason for the interference of the High Court. In Shankar Tulsimm v. Kundlik Anyaba it was found that the trial Court did not have territorial jurisdiction in respect of one of the offences of which the accused had been acquitted,, the case having again been put up for trial for the same offence. It was held that there was no bar to the second trial under Section 403.
6. It will be seen that in both of these cases the Court originally trying the accused had no jurisdiction db initio to try him ; and such not being the case here, the present case is distinguishable from them. Another case in which there was no jurisdiction ab initio in the first trial Court is Muthu Moopan, In re  Mad. 664. In that case a Magistrate, who, though empowered by Section 28, Criminal Procedure Code, to try an offence under Section 186, Indian Penal Code, was prevented by Section 195, Criminal Procedure Code, from taking cognizance of the offence except on the complaint of the public servant concerned or of some one to whom he was subordinate. He, however, acquitted the accused after framing a charge and recording defence evidence, on the ground that the requisite complaint had not been filed. It was held that the trial, charge and judgment of acquittal were all void under Section 530, Criminal Procedure Code, and that Section 403(1), Criminal Procedure Code, was no bar to the trial of the accused for the same offence on a complaint filed by the public servant concerned. In Queen Empress v. Gundya I.L.R. (1889) 13 Bom. 502 though a case really falling under Section 326, Indian Penal Code, was tried by a Second Class Magistrate as a case falling under Section 325, it was held that the proceedings were no void ab initio in view of the charge which the accused had been called upon to answer. This case shows that this High Court was reluctant to curtail the operation of Section 403 where it was possible to hold that the Court holding the first trial had jurisdiction.
7. In the result, therefore, it must be held that in this case the Court which tried the earlier case had jurisdiction to try it, and that what happened after the said trial had commenced was that a wrong number of jurors were empanelled. That Court was .no doubt guilty of a serious irregularity which may be said, in somewhat loose phraseology, to have resulted in a trial which was void or was a nullity. That being our view, we must hold that Section 403 applies to the facts of this case, that the applicants have once been tried by a Court of competent jurisdiction, three of them having been acquitted and one convicted, and that the acquittal and the convictions still remain in force. It appears that the fourth applicant who was ordered to enter into a bond for good behaviour actually entered into such a bond, and that bond does not appear to have been cancelled or set aside.
8. The rule will, therefore, be made absolute and the order of the learned Additional Sessions Judge of Thana set aside so far as it concerns the present applicants, whose application must be granted, with the result that they cannot be tried at the trial' which will now proceed before the said Judge.