1. The Advocate General applies that I should direct a special jury to be summoned for the trial of the two cases under Section 276 of the Criminal Procedure Code.
2. The charge against the accused in these two cases is one under Section 124A of the Indian Penal Code. The Advocate General points out that in four previous cases of a trial under this section in this Court the trial was by a special jury. The matter is one of discretion, but I certainly think that the fact that Section 124A is punishable with the highest punishment known to the law, except death, is a fact that has to be borne in mind, because the legislature has indicated by Clause (a) of the third portion of Section 276 that, where there is the extreme penalty of death, the trial should invariably be by a special jury. To this must be added the consideration that in previous cases of the same kind a special jury had been directed under this section, and the late Mr. Justice Davar in Emperor v. B.G. Tilak (1908) 10 Bom. L.R. 859 has given reasons why he thought it proper to direct a special jury in that case against Mr. Tilak. Certainly, the precedents that have been cited afford, I think, cogent grounds for granting the application.
3. It is contended by Mr. Talyarkhan and Mr. Ginwalla that there is no complicated evidence in this case and that the accused are not of the same importance as the accused in these other cases. The latter contention is, I think, one which should be entirely put aside, because the law is supposed to take no special regard of the position of the accused, whether important or unimportant. And although there may not be any very complicated questions arising, yet at any rate it appears that the case is one where, as the Advocate General said, a good knowledge of English is desirable on the part of the jury trying the case; and that knowledge will be at any rate probably greater in the case of a special jury than in the case of a common jury. Nor do I think that there can possibly be any prejudice to the accused in these cases, if a special jury is directed. It seems to me that, with men of supposed greater intelligence, the accused will have everything in their favour. So that, following the decision of Mr. Justice Davar abovementioned and the other precedents, I think this is a proper case for trial by a special jury, and direct accordingly.