1. In this case it appears that the eight appellants and another person were put upon their trial before the Sessions Judge and a jury on charge. under Section 302, I.P.C., and also upon charges under Sections 147 and 148.
2. What was done with reference to the jury was this : that only 12 persons were summoned to attend the Court as jurors. Of these eight appeared on the day of the trial and, from the eight who appeared, seven persons were chosen to act as the jury. In these circumstances, Mr. Fazlul Huq, for the appellants, calls our attention to Sections 274 and 326, Criminal P.C., and he contends that the tribunal was illegally constituted and that all the proceedings should be set aside.
3. Now, it is quite clear that under Section 274 where any accused person is charged with an offence punishable with death, the jury should consist of not less than seven persons and, if practicable, of nine persons. By Section 326 it is provided that the Sessions Judge, should send a letter to the District Magistrate requesting him to summon a number of persons, the number to be summoned not being less than double the number required for any such trial. The exact effect of that section I will not now attempt to define, but it, at least, sets a minimum standard for the number to be summoned and Section 327 also (where it is applied) can and should be applied so as to comply with this. In the present case only twelve jurors were summoned; and only eight persons appeared out of the 12. In these circumstances, the concluding words of Section 274 could take no operation whatsoever. Now, so far as can be seen, it was quite practicable to have this case tried by a jury of nine; but the manner in which the jury was empanelled and the insufficiency of the number of jurors summoned defeated the intention of the section.
4. Mr. Fazlul Hug, in addition to this, has referred to the judgment of my learned brother, C.C. Ghose, J., in the case of Roson Ali v. Emperor : AIR1927Cal787 . This judgment gives rise to several additional questions to which it is open to Mr. Huq to refer. With regard to these questions, I do not propose to say anything now, because, in my judgment, it is unnecessary to delay this case so as to deal with them. I am of opinion that, contrary to the intention of the Code and to the standard set by the legislature, an unreasonably small number of jurors was summoned with the result that it was not possible to have a jury of nine and that the proceedings ought not to be allowed to stand. The position is that the tribunal was illegally constituted and, in my judgment, in a case of this character it is necessary that the whole proceedings should be set aside and the case remitted for retrial.
5. As regards bail : we will put the appellants back to the position in which they were at the time when the original trial commenced so that they may give security to the satisfaction of the District Magistrate in the same amounts.
6. I agree.