1. This appeal must be dismissed. What has happened in this case is this : A trial was going on before the learned Sessions Judge in which the accused had been charged with having committed an offence punishable under Section 395, I.P.C. It appears that certain other people had been committed to take their trial in the Sessions Court in respect of an offence punishable under Section 412, I.P.C. There was an order made in the last-mentioned case that the trial of the accused under Section 412, I.P.C., should be taken up after the trial of the case under Section 395 had been concluded. It appears further that one of the accused in the case under Section 412, I.P.C., was the tadbidkar of the accused in the case under Section 395. The appellant before us is the President, Panchayat of the Union, and it is said that he noticed on one particular day that the foreman of the jury, who were trying the accused under Section 395, I.P.C., was talking to the accused in the case under Section 412, who was the tadbidkar of the accused in the case under Section 395. He thereupon brought the matter to the notice of the learned Sessions Judge.
2. The learned Sessions Judge thereupon determined to hold au enquiry into the matter, and as preliminary thereto, the appellant before us was required to file an affidavit stating what he had observed1 in respect of the matter to which he had drawn the attention of the learned Sessions Judge. The appellant filed an affidavit which was sworn to before the sheristadar of the Court. The affidavit was brought to the notice of the Sessions Judge on the 26th July 1926, when he, after perusing the affidavit, called upon the appellant before us to step into the witness-box and to state orally on oath the circumstances referred to in his affidavit. The appellant thereupon, gave evidence before the learned Sessions Judge. It subsequently transpired that the sheristadar had no power to have affidavits sworn before him. It followed thereupon that no action could be taken on the affidavit referred to above, but the learned Sessions Judge-having come to the conclusion in the course of the enquiry which he held, wherein the appellant before us gave evidence, that the information which had been supplied by the appellant was false, directed that complaint should be lodged against the appellant for having: committed an offence punishable under Section 193, I.P.C. He accordingly drew up proceedings under Section 476, Criminal P.C., in respect of the statement made by the appellant during his examination on the 26th July 1926 at the enquiry referred to above.
3. It is argued before us that the proceeings initiated by the learned Sessions Judge under Section 476, Criminal P.C., are incompetent, because there is no provision whatsoever in the Code of Criminal Procedure, which authorized the learned Judge to hold an enquiry, such as he did in the midst of the trial of the accused under Section 395, I.P.C., into the circumstances to which attention had bean drawn by the appellant and that, therefore, the enquiry which he held was not and should not be treated as a judicial enquiry, and no oath could be administered to the appellant on the 26th July 1926. It is further argued that there is nothing in the Code of Criminal Procedure which prevented or could prevent the foreman of the jury from talking to the tadbidkar of the accused in the case under Section 395.
4. Lastly, it is argued that the learned Judge has nowhere recorded that it is expedient in the ends of justice to make a complaint such as he directed to be made under the provisions of Section 476, Criminal P.C., nor did he find as a fact that the evidence before him was of such a nature as could warrant his taking action in the manner in which he did.
5. It is perfectly true that there is no express provision in the Code of Criminal Procedure for an enquiry o the nature such as was held by the learned Sessions Judge during the progress of the trial of the accused under Section 395, I.P.C., but there can be no doubt whatsoever that the learned Judge had power to make such an enquiry, and in this connexion reference may be made to the case of Rahim Shaik v. Emperor A.I.R. 1923 Cal. 724. As observed in that case, it would be farcical to hold that when a matter of this description is brought to the notice of the teamed Sessions Judge in the midst of a Sessions trial he has no jurisdiction to make an enquiry, such as in his discretion he may consider necessary in the ends of justice.
6. In our opinion, whenever the conduct of the jury is taken exception to during the progress of the trial in the Sessions Court the presiding Judge has undoubted jurisdiction to enquire into the same it follows from what has been stated above that an enquiry such as is referred to must in the nature of things be a judicial enquiry. In the course of such an enquiry the Sessions Judge is entitled to call upon persons to appear before him, to administer oath to such persons and to require them to give evidence. We must therefore negative the first point argued before us.
7. As regards the second point, the statement of the proposition carries, in our opinion, its own refutation, We entirely dissent from the proposition sought to be canvassed before us that the jury were entitled (we leave aside the cases referred to in Sections 293 and 300, Criminal P.C.) during the progress of a trial of a case talk to persons connected with the accused. The jury are obviously not entitled to discuss the case which is being tried before them, or to talk to persons connected with the accused before them. The second point must, therefore, be negatived.
8. As regards the third point, the learned Judge's order shows that in his opinion the appellant had given false evidence before him. That order by itself and in view of the proceedings stated under Section 476, Criminal P.C., carries the implication that the learned Judge must have felt that the ends of justice required that an enquiry before a Magistrate should take place. It is not necessary, having regard to the terms of Section 476, Criminal P.C., that any preliminary enquiry that may be deemed necessary should be of an exhaustive nature. The third paint also fails and the result is, as stated above, that this appeal must stand dismissed.