1. There are two matters before us. One is a Reference by the learned 5th Additional Sessions Judge of the 24-Perganahs. It appears that the learned Judge was trying a case in which all the seven accused were charged under Section 147 and also under Section 302 read with Section 149 of the Indian Penal Code but, in addition, three of them were also charged under Sections 326; 325 and 323.
2. The case had been committed for trial. I may say at once that it does not appear to me that there was any illegality about the order of commitment. The committing Magistrate in his order has quite properly dealt with the question whether the accused should be committed for trial on a charge under Section 302 read with Section 149. In these circumstances his order of committal was perfectly good.
3. The case began on the 4th of August and it was tried on the 4th, 5th, 6th, 7th and the 9th of August. Then, on the 10th a juror fell ill. On the 11th he was absent and the case was adjourned to the 16th. As a matter of fact, on the 16th this particular juror was present, but another juror was ill and sent a medical certificate. Apparently by the medical certificate, if carefully scrutinized, it would have been discovered that another four days time might have sufficed to get that juror's attendance. However, the learned Judge, after discussing the question, whether to fix the case for the 13th of September or a subsequent day, finally made up his mind to discharge the jury and he discharged the jury. Having discharged the jury the next step that took place before him was that the prosecution appeared before him and withdrew the charges under Section 302 read with Section 149 against all the accused. Those charges having been got rid of, the learned Judge has referred the matter to this Court for an order that the remaining charges, that is to say, of rioting and hurt against the accused should be sent to be tried before a Magistrate; in other words, that the order of committal to the Sessions Court should be set aside.
4. Taking these matters in their chronological order, the first thing to be decided is whether or not the order discharging the jury was a good order. In my opinion, it was a perfectly good order. If one looks at Section 282 which deals with this matter, it says this:
If any juror, from any sufficient cause, is prevented from attending throughout the trial.
5. Whether a jurior is prevented from attending throughout the trial depends, among other things, on the days during which the trial is going to take place. In this particular case the question was whether or not an adjournment should be given for a certain length of time. No adjournment was given, so the juror who was ill was prevented from attending throughout the trial. However much the language of Section 282 may be scrutinized, it is abundantly evident that in such a case there is a discretion in the learned Judge whether to postpone the trial to a date on which the juror should be able to attend or to discharge the jury or have another jury. If a-juror is going to be able to attend in a very short time, it is a wrong exercise of discretion to discharge the jury. In this particular case, taking one thing with another, the learned Judge thought that he was not likely to be able to get on with this case until the lapse of a good many more days; and, taking the circumstances as a whole, he elected to discharge the jury. In view of the fact that a good deal of evidence had been taken before the jury it may be that he exercised his discretion in a manner which was a little hard upon the accused. It may be that some day early in September, if it could have been managed, would have been quite a suitable day for going on with the trial; but the learned Judge did not think so. The result is that the order in this case discharging the jury is one with which it would, in my opinion, be quite improper for us to interfere.
6. Then the question whether since the charges under Section 302 read with Section 149 have gone, this Court should make an order that the remaining part of the case should be tried before a Magistrate and should set aside the commitment. On that I am very clear indeed that such an order would be entirely wrong. I will not here discuss the question whether the power of reference given by the Code embraces this particular reference which has been made; but dealing with the merits of the matter it does seem to me that after the accused have been committed to the Sessions-a perfectly good commitment-the fact that graver charges have been withdrawn is no reason at all why the commitment order should be set aside and the accused's right to a trial by jury should be taken away from them without their consent. In my judgment it would be wholly wrong to do anything of that sort, and the correct course is that this case must go back for trial in the ordinary course as regards the remaining charges by the Sessions Judge and a jury.
7. As it is desirable to give a ruling on the matter, we think it right to say that as the accused persons by their counsel appear to desire that they should have a jury of the same number as the jury by whom they were being previously tried, we give a direction that in this case the re-trial shall take place before a jury of nine persons.
8. With reference to the question, whether, had we thought that the discharge of the jury was illegal, we would have ordered a re-summoning of the old jury, I only desire to say for myself that it would require very strong circumstances indeed to make me give an order for the re-summoning of a jury that have, been at large since the 16th of August. Taking one thing with another, it would require some little further time before the case possibly could be re-started and I quite agree with the learned Advocate-General that it would be improper and inconvenient for persons to be re-summoned who have been release from their oath as jurors by an order of discharge and who, therefore, have been perfectly entitled in the interim to discuss the matter either with their friends or with the accused or with anybody they like. Such an order as that, I hope, will never be made by this Court except in very exceptional circumstances.
9. For these reasons, the Reference of the learned Sessions Judge will not be accepted and for the same reasons the Rule which was granted at the instance of the accused persons will be discharged subject to the order which we have made as regards the jury of nine persons.
10. Let the record be sent down at once.
11. I agree.