J.P. Mitter, J.
1. In this case, the three accused persona--Alfreed D'Cruz, Shiral D'Cruz and one Lakhi Dasi--have been charged under Section 363 and 366, Penal Code. The two charges relate respectively to abduction and kidnapping from lawful guardianship of a girl called Teresa Gomes.
2. The jury were empanelled on the 8th and after the opening of learned counsel for the prosecution, Dr. Kabir Hossain, Professor of Medical Jurisprudence, Medical College, Calcutta, and one Dr. A. K. Chakravarty, radiologist, Calcutta Police Hospital, were examined. The evidence of these witnesses was concerned with the age of the girl in July this year. The next and the third witness for the prosecution was the girl said to have been abducted and kidnapped, that is, Teresa Gomes.
3. At the conclusion of the last named witness's evidence I asked the gentlemen of the jury if they had any questions to put to the witness, whereupon the foreman of the jury, instead of putting any question, expressed the view that the story told by the said witness was untrue. This expression of opinion in open Court at an early stage of the trial is, in my opinion, calculated to cause a miscarriage of justice.
4. So far as the Code of Criminal Procedure is concerned, the power of the Court to discharge a jury is confined to Sections 282 and 283 thereof. The Court has, nevertheless, an inherent power to discharge a jury in a case such as this. That power is not confined to cases of misconduct as such, but plainly extends to a case where the Judge finds reasons for doubting the impartiality of the jury.
5. There is authority for discharging a jury in circumstances such as these. In a case reported in Bindeshi v Emperor, 37 Cr. L. J. 749: (A. I. R. 23) 1936 oudh 268), it was held that if a jury expresses an opinion clearly regarding the guilt or innocence of an accused person before the charge to the Jury has been delivered, the Judge would be well advised in discharging the jury and to hold a fresh trial with a fresh jury.
6. In this case, the expression of opinion by the foreman of the jury happens to be in favour of the accused persons. But a premature expression of opinion adverse to an accused person would be a very grave matter, and, consequently, as a matter of principle, and having regard to all the circumstances of this case, I feel that this jury should be discharged and that the accused persons be remanded for a fresh trial before a fresh jury.
7. This jury is, therefore, discharged. I direct that there be a new trial of the accused persons with a new jury.