1. This rule must be made absolute on the first ground upon which it was granted, namely that the trial was bad as not being in conformity with the provisions of Section 276 Criminal Procedure Code. It appears that of the 12 jurors summoned to attend the Sessions Court only 5 appeared, and those were empanelled as jurors and heard and decided the case.
2. Now Section 276 requires the jurors to be chosen by lot and the second proviso to the section lays down that in case of a deficiency of the persons summoned, the number of jurors required may with the leave of the Court be chosen from such other persons as may be present. In the present case there being only 5 jurors present and 5 being the necessary quorum for a jury plainly there were not enough jurors present to permit of their being chosen by lot. The proper course in my opinion therefore for the Judge to have followed was to make good the deficit by choosing some other persons who were present and adding their names to the five jurors and from the whole body choosing the necessary five by lot to act as the jury in the case.
3. The learned Sessions Judge thinks that the procedure followed is a mere irregularity and as no objection was raised by the accused and no prejudice was caused to them the verdict cannot be upset. He refers to the case of Empress v. Jhubboo Mahton  8 Cal. 739. That decision was however not followed in the later case of Brojendra Lal Sirkar v. King-Emperor  7 C.W.N. 188, wherein it was held that
the irregularity was of a very grave and material nature inasmuch as it affected the proper constitution of the Court.
4. The same view was taken by the Allahabad High Court in the case of Emperor v. Bradshaw  33 All. 385.
5. The latest case of The Government of Bengal v. Muchu Khan : AIR1925Cal798 does not lay down any different proposition of law. We are therefore of opinion that the trial is bad. The conviction and sentence are according to law upon the original charges. The petitioners are permitted to remain on their present bail pending the orders of the Sessions Judge.
6. I agree.