C.C. Ghose, J.
1. In this case the appeal was admitted on the ground of sentence. The appellant has urged that if the facts set out in para. 7 of his petition affirmed with an affidavit bearing date 27th April 1928, had been brought to the notice of the jury the jury might have taken a different view and that bearing that in mind the sentence ought to be reduced. The facts set out in para. 7 of the petition referred to above happened after the verdict of the jury had been given, and it is inconceivable to us how those facts could be utilized for the purpose of inducing this Court to alter or reduce the sentence passed on the appellant in any manner whatsoever. Those facts are not facts to be found on the Sessions record. Therefore, if the matter stood alone the question of sentence would have to be considered from the point of view indicated above and the result would be that this Court would find itself unable to interfere with the sentence imposed in this case. But in this appeal our attention has been drawn by Mr. Fazlul Huq to the fact that the jury who were empannelled to try the ap-pellant were not constituted in the manner provided by law, that is, in accordance with the interpretation of the law in that behalf given in the Full Bench case reported in Kedar Nath v. Emperor : AIR1928Cal83 . The learned Deputy Legal Remem brancer whose attention was drawn to this fact after examination of the order-sheet, admits that the jury were constituted in violation of the principle laid down in the Full Bench case. That being so it follows that the constitution of the Court that was to try the appellant was if not illegal certainly irregular. It is perfectly true that this is not the ground upon which the appeal was admitted; but now that the matter has been brought to our notice and as the matter involves the question of jurisdiction going to the root of the trial it is our bounden duty to take notice of it and act accordingly.
2. The result, therefore, is that the verdict of the jury in this case must be set aside, the conviction and sentence will also accordingly be set aside and the case must go back for re-trial of the appellant in accordance with law.