1. This is a reference by the Additional Sessions Judge of Dacca under Section 374, Criminal P.C. submitting for confirmation the proceedings in a case under Section 302, I.P.C. in which sentence of death has been passed upon the accused. The accused Dwarika Malo has also appealed against his conviction and sentence.
2. A preliminary point has been raised on behalf of the appellant that the jury, before which the case was tried was not properly or legally constituted, and that as a consequence the conviction and sentience are bad in law. We think that this contention is well founded and must prevail.
3. The sections of the Code which bear upon the point are Sections 274 and 326 of the Code. Section 274 lays down that in trials before the Court of Sessions the Jury shall consist of such uneven number, not being less than five, or more than nine, as the Local Government, by order applicable to any particular district, or to any particular class of offences in that district, may direct and the proviso to this section, which was added by Act 12 of 1923, states that where any accused person is charged with an offence punishable with death, the jury shall consist of not less then seven persons and, if practicable, of nine persons.
4. Section 326, which deals with the summoning of jurors and assessors, requires inter alia that the number to be summoned should be not less than double the number required for the trial.
5. Applying these provisions of the law to the present case it is clear that being a murder case not less than eighteen jurors should have been summoned. As a matter of fact only fourteen were summoned, and there was therefore to commence with a failure to comply with Section 326. It appears, however, that Section 274 could still have been complied with since eleven jurors are shown as having been in attendance. For some reason however, only seven of these were empanelled and the trial proceeded. In the circumstances stated it cannot be said that it was not practicable to empanel a jury of nine as required by Section 274 and, as there was a breach of this statutory provision, the jury must be held to have been illegally constituted. This view of the matter is supported by recent authority in this Court reported in Serajul Islam v. Emperor : AIR1928Cal645 . In that case twelve persons were summoned and seven persons were selected as jurors out of eight who attended. It was held that the tribunal was illegally constituted, the proceedings were set aside, and the case remitted for retrial. We regret that we have no alternative but to follow the same course in the present case. We accordingly allow the appeal, set aside the conviction and sentence and direct that the case be retried according to law.
6. We draw the attention of the Additional Sessions Judge to the importance of seeing that the sections of the Code to which reference has been made above are in future carefully complied with.