John Beaumont, Kt., C.J.
1. In this case accused, who are appealing, and certain other accused were prosecuted for various offences, including an offence under Section 436 of the Indian Penal Code, i.e. arson, and they were tried by the Sessions Judge of Thana with a jury. Apparently the learned Judge and the counsel in the case were all under the impression that the Enhancement of Penalties Ordinance had been applied to Kolaba District and under that Ordinance an offence under Section 436 might be punished with death. Accordingly, under the proviso to Section 274 of the Criminal Procedure Code the learned Judge empanelled a jury of nine persons. In the result three of the accused were acquitted of all offences and the present appellants were found guilty by a majority of six to three of an offence under Section 120B, but were acquitted of the offence under Section 436.
2. It now appears that the Enhancement of Penalties Ordinance has not been applied to Kolaba, and that being so, there should have been a jury of five. Section 274, Sub-section (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 Local Government may direct. So that the number of the jury is not determined by the section, and a direction by the Local Government specifying the number of the jury is essential, and the number must be either five, seven or nine.
3. Government by Notification No. 8267/3-11 dated January 24, 1939, have directed that in exercise of the powers conferred by Sub-section (2) of Section 274 of the Code of Criminal Procedure 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, or in respect of which the offender is liable to enhanced punishment under Section 75 of the Indian Penal Code, shall consist of five persons. It seems to me that that is a perfectly plain direction and cannot mean, as the Government Pleader argues, that the jury shall not consist of less than five persons. As the trial has taken place before a jury in excess of the legal number, it seems to me that the trial is necessarily a nullity. If authority is needed for that proposition, there is a case exactly in point, in Emperor v. George Booth I.L.R. (1903) All. 211.
4. That being so, we must set aside the conviction, order the accused to be released, and leave Government to take such further action in the way of a new trial or otherwise as they may think fit.
5. 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 today, but at the same time persons who are not before us are not, of course, technically bound by our judgment.
6. 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.
7. I agree.