S.B. Sen, J.
1. The appellant Michael has been convicted under Sections 363 and 366, Indian Penal Code, and sentenced to rigorous imprisonment for one year and three years respectively thereunder.
2. The trial was by jury. Seven jurors constituted the jury. The case of the appellant in appeal, apart from other grounds, is that out of seven jurors, four did not know and understand English language. The charge to the jury was read out by the learned Additional Sessions Judge in English and it was not translated completely into Hindi and read out to the jurors who did not understand English. An affidavit was filed in this connection, by the appellant. I had asked the State to reply to the points raised in the affidavit. I find that the reply is not a categorical denial of the allegations mentioned in the affidavit. I, therefore, summoned the four jurors to appear before me. Out of them, three appeared. The summons against the fourth was not received and the counsel for the appellant gave her up. Therefore, only three jurors were examined in the Court.
3. Sk. Adam dearly stated that he does not know English and the Court read out the charge in English. Kasturilal stated that he knows Only Urdu and had studied upto VI standard. He does not know even Hindi properly. He comes from village Dhermond, district Camelpur, which is now in West Pakistan. According to him, the Additional Sessions Judge explained the case in Hindi, but the whole thing was not explained. The charge was read in English and he could know the facts of the case only from the statements of the witnesses. The other juror Sitaram also comes from Rawalpindi. He Came to Jabalpur after the partition of India. He had studied Urdu upto VIIIth standard and does not know Hindi properly. He does not know English at all. According to him, the charge was read out in English. Though it was explained in Hindi, but according to him, he did not follow it fully. He stated that when the verdict was given, he gave his opinion according to the wishes of the other jurors. He could not form any opinion himself. It is thus clear that the charge was read over in English. It was explained to the jurors in Hindi only in part and two of the jurors were not conversant with Hindi properly. The four jurors do not know English at all.
4. From the record also I find that the charge was written in English. At the top, it is written 'Fully explained in Hindi'. The, State has filed a report of the Additional Sessions Judge. He has given the qualifications of the four jurors as follows:
1. Smt. Baini Kunwar..
Knows Hindi and Urdu well,
andEnglish to some extent.
Knows Hindi and Urdu,
4. Sk. Adam,.
Passed Hindi examination.
The learned Additional Sessions Judge, who tried the ease, has reported that he invariably read the charge to the jurors in English and then fully explained the same to them in Hindi. The order-sheetdated 17-1-1959, reads as follows:
'Charge to the jury read out between 12 A. M. and 1.29 P. M.'
This does not at all help the State. The charge Was written in English and, therefore, what was read must be in English. The order-sheet, dated 17-1-1959, does not show that the Additional Sessions Judge translated the charge in Hindi also and explained the same fully to the jurors. In the absence of such an endorsement in the order-sheet, it is not possible to hold that the charge was read out in Hindi and explained fully. It may also be worthwhile to mention that the appellant, in his affidavit, has categorically stated and enumerated the paragraphs which were not explained to the jurors in Hindi. This has also not been controverted. In the affidavit, dated 2-2-1959, the appellant has stated that even the counsel for the State had asked the Additional Sessions Judge to translate the charge completely in Hindi, but it was not done. This has also not been controverted by the State. I, therefore, hold that the charge was not translated in Hindi and explained to the jurors; that the four: jurors were not conversant with English and two of them were not fully conversant with Hindi.
5. In the case of trial by jury, the charge is the most important matter. The jurors are the final judges of facts and they must know fully well the case of the prosecution and the defence and also certain matters of law, which should be explained by the Court. Unless each juror understands each and every part of the proceedings, specially the charge to the jury, it will be a mockery of justice to have a verdict and to act upon it. In a recent case of this Court, Jamna v. State, Criminal Appeal No. 368 of 1957, D/-30-7-1958, V.R. Sen. J., had quashed the proceedings as some of the jurors did not know English and the charge was delivered in English. The learned judge has relied on Kapil Deo v. State of U. P., AIR 1958 SC 121. That was also a case in which the jurors did not understand English. In the circumstances of the, case, therefore, the verdict of the jury is vitiated. There has been gross miscarriage of justice in basing the conviction on the1 verdict so received from the jurors in this case.
6. The result is that the proceedings before the Additional Sessions Judge are quashed and the conviction and sentence of the appellant are set aside. It is left to the prosecution to decide whether the applicant should be retried and, therefore, I do not want to make any remarks on the merits of the case. In view of the Government of Madhya Pradesh, Law Department, Notification No. 13058-2264/XXI-B, dated 11-4-1959, the difficulty of choosing jurors will not arise.
7. I may mention here that rule 218 of the Rules and Orders (Criminal), issued by the High Court, clearly mentions that the knowledge of English is an essential qualification for selection of jurors. Unless that rule is changed, it will not be proper to empanel any juror who does not know English. However, if it is not possible to find jurors knowing English then the charge should be translated in Hindi, or should be delivered in Hindi and then translated in English. It must always be borne in mind that the jurors must fully know the charge and they must be in a position to follow the implications.
8. The appeal is allowed, the proceedings before the Additional Sessions Judge are quashed and the conviction and sentence of the appellant areset aside.