Lancelot Sanderson, C.J.
1. In this matter the point has been taken by the learned Vakil for the appellant that 'the proceedings at the trial were vitiated by the fact that after the Judge's charge was finished,' I am now using the words of paragraph 12 of the petition, 'the members of the Jury were found walking about in the compound of the Court and persons other than a juror ware seen to speak to the members of the Jury.' Upon that being drawn to the attention of the Court, and the appeal having been admitted, apparently the learned Judges who admitted the appeal asked for an explanation with regard to this matter, and the learned Sessions Judge has reported as follows: 'Just after the Jury delivered their verdict in this case, the learned Vakil for the defence drew my attention to the fact that certain jurors had been seen out of their retiring room and talking to persons other than jurors after their retirement and before their return, I drew up a proceeding and questioned every one of the jurors, the full particulars of which will be found in the proceeding which forms a part of the record of this Court. In my opinion the juror's replies are perfectly true and the point is of no importance.'
2. The result of the enquiry which the learned Judge made from the jurors is this. It appears that three of the jurymen after arriving in their retiring room went out into the compound for the purpose of relieving nature. The fourth, who was a Mahomedan, went out of the retiring room into the compound for the purpose of saying his prayers, and, the fifth juryman remained in the retiring room. The fourth juryman in his answer to the learned Judge admits that while he was outside the retiring room, a man spoke to him and asked him a question and he replied to it. The learned Vakil for the appellant has argued that in view of this fact the verdict which involved the conviction of the appellant cannot stand; and, he relied on Section 300 of the Code of Criminal Procedure which is in these terms: 'In cases tried by Jury after the Judge has finished his, charge the Jury may retire to consider their verdict. Except with the leave of the Court, no parson other that a juror shall speak to, or hold any communication with, any member of such Jury.' That is an explicit direction to the Court with regard to the course to be adopted when the Jury retire to consider their verdict after the charge has been delivered and it seems to me in view of the undoubted facts in this case that this verdict cannot stand for the reasons that it is clear that a person other than a juror did speak to and hold a communication with a member of the Jury after the charge had been delivered, and it was without the leave of the Court.
3. The result is that this verdict must be set aside.
4. It will be open to the Crown to proceed further with the case if it be so advised.
5. It is not necessary for us, and it would not be right, in my opinion, to enquire into what was the nature of the question which was put by the person other than a juror to the juror or what was the answer. It is said by the learned Judge in his report to us that in his opinion the point is of no importance. With great respect to the learned Judge, I cannot agree with him. I think it is a matter of great importance that the section of the Act, which is explicit in its terms should be observed.
6. In the course of the argument a case was cited to us, viz., R. v. Ketteridge (1915) K.B. 467 : 84 L.J.K.B. 352. Of course it is no authority upon the point in this Court, because we have to decide the question according to the section of the Act: and, I only refer to it upon this question of importance. The learned Judges in giving their judgment in that case said, 'In our opinion it is not necessary or relevant to consider whether the irregularity has in fact prejudiced the prisoner.' Having regard to the terms of Section 300, if it is proved, as it was in this case, that after the charge had been delivered, a person other than a juror spoke to or held a communication with a member of the Jury without the leave of the Court, in my judgment that is sufficient to upset the verdict: and, in order to show how important it is regarded that no one other than a juror should speak to the Jury without the leave of the Court after a charge has been delivered, I refer to the English Act of 1897 called the Juries Detention Act, which provides in the first section 'upon the trial of any person for a felony other than murder, treason, or treason felony, the Court may, if it sees fit, at any time before the Jury consider their verdict, permit the jury to separate in the same way as the Jury upon the trial of any person for misdemeanour are now permitted to separate.' It, therefore, appears that the Legislature in giving power to the Court to allow the Jury to separate in felony oases, other than those specifically mentioned, did not give the Court power to allow the Jury to separate after they had retired to consider their verdict, for we find the words 'at any time before the Jury consider their verdict' are put into the section.
7. My learned brother and I are of opinion that we ought to say something with regard to the general question, because the matter which was the basis of this appeal could easily have been prevented if proper precautions had been taken when the Jury retired to consider their verdict. We hope that in future the learned Judge Who presides over the Court will see that proper precautions are taken to make it impossible, after the charge has been delivered and when the Jury retire to consider their verdict, for any one other than a juror to speak to the Jury or communicate with the Jury without the leave of the Court. It may be pointed out that this was a case, the trial of which took eight days, and the result, of this irregularity which could have been easily prevented by the taking of proper precautions is that the time occupied by the trial is altogether thrown away.
8. We direct that until a fresh trial, if any, the accused be enlarged on bail to the satisfaction of the District Magistrate.
9. I agree.