Karamat Husain, J.
1. In this case one Bradshaw, a European British subject, was committed to the Court of Session of Lucknow for trial for offences under Sections 474 and 417, Indian Penal Code. He was convicted on both counts and sentenced to an aggregate term of one year's rigorous imprisonment. He appeals to this Court and one of the points taken is that there was no selection of jurors by lot as required by Section 276 of the Code of Criminal Procedure and that, therefore, the proceedings resulting in his conviction are illegal.
2. He, as it appears from the record of the case, claimed to be tried as an European British subject and with a jury composed of Europeans or Americans (See B. 7). The last date fixed for the trial by the Court of Session was the 7th of October 1910 and the record of the case shows that for that date, 10 European jurors were summoned to attend and the remarks of the learned Sessions Judge in his order dated the 7th of October 1910, are to the same effect. He towards the end of that order says: 'I further note that including the two above gentlemen only three European jurors have up to this moment (10-35 A.M.) appeared out of 10 summoned to be present at 10 A.M.'
3. According to Notification No. 1693/VI-545A-10 in trials by jury before the Courts of Session in the North Western Provinces and Oudh, the jury shall consist of fire persons.
4. Section 462 Clause (3) of the Code of Criminal Procedure provides' that from the whole number of persons returned, the jurors who are to constitute the jury shall be chosen by lot in the manner prescribed in Section 276 until a jury containing the proper number of Europeans or Americans, or a number approaching thereto as nearly as practicable has been obtained.
5. Section 276 of the Code of Criminal Procedure provides that the jurors shall be chosen by lot from the persons summoned to act as such, in such manner as the High Court may from time to time direct.
6. Rule 102 of the Rules and Orders for Criminal Courts subordinate to the Court of Judicial Commissioner of Oudh gives the manner in which the jurors are to be chosen by lot. As the number of European jurors who appeared on the 7th of October 1910 was only 3 and as all of them were empanelled it is evident that the imperative procedure prescribed for choosing jurors was not followed.
7. Jurors are the Judges of facts and in the absence of a properly constituted jury, the violation of the imperative procedure prescribed by the Code of Criminal Procedure is of such a serious nature as cannot be cured by the provisions of Sections 537 of that Code. See Brojendro Lal v. Emperor 7 C.W.N. 188.
8. For, the above reasons, I allow the appeal, set aside the sentence and conviction and direct that the appellant be re-tried by a properly constituted jury. As the appellant is in the Naini Jail, I, on the application of his learned Counsel, allow him to be admitted to bail to the satisfaction of the District Magistrate of Allahabad.