1. This rule has been issued on two grounds: (1) that the order of the Additional Sessions Judge discharging the jury and directing a fresh trial of the petitioners is wrong and should be set aside; and (2) why the case should not be transferred from Noakhali to Comilla.
2. As regards the first ground the facts are that the trial went on for a long time and the argument on behalf of the defence was finished and while the Public Prosecutor was arguing on behalf of the Grown an application was filed by the Public Prosecutor for discharging the jury. The facts mentioned in the application were that one of the jurors had called at the house of the Public Prosecutor and that two others were seen talking to a person belonging to the accused party. The application was supported by affidavits and the learned Additional Sessions Judge thereupon examined the pleader Babu Ashutosh Mukherjee and a juror M. Abdul Khaleque. He did not institute a searching enquiry but after examining these witnesses he was of opinion that it was a case of (at least) suspicion and, therefore, he thought it necessary in the interest of justice to discharge the jury. The learned advocate on behalf of the accused argues that the learned Judge should have instituted a regular enquiry into the matter and then if he was satisfied that there was reason to believe that the jurors would not be impartial and would be influenced or if there had been good grounds for suspecting their integrity he could then and then only have discharged the jury. It is regrettable that the trial went on for over 32 days and the case was on the point of being finished when this untoward incident occurred. On behalf of the Crown it is argued that a Judge presiding over the Sessions has absolute right to determine the propriety of discharging a jury and his discretion cannot be questioned either in appeal or in revision. The English law on the point certainly favours this view. It was at one time held that the reasons which led a Judge to discharge a jury may be scrutinized by a Court of appeal or in revision: see Edmond Conway and Patrick Lynch v. The Queen  1 Cox. 210 Subsequently this view was disapproved in Windsor v. Regina  1 Q.B. 289 by the Original Court and also on appeal from that case reported in the same volume at p. 390. The law as it stands in England is that a Judge may at his discretion discharge a jury even though there may not exist 'absolute' necessity for doing it but a high degree of necessity for such a discharge is evident. In the King v. Ketheridge  1 K.B. 467, one of the jurors separated himself from his colleagues by mistake. It was held that it was a sufficient reason to justify the order of the Judge for discharging the jury and that it was not necessary or relevant to consider whether the irregularity has in fact, prejudiced the prisoner. It is not necessary for us to go so far as to hold that this Court has no jurisdiction to enquire into the reasons which led the Judge to discharge the jury. In view of the wide provisions Section 439, Criminal P.C., it is difficult to say that this Court is debarred from enquiring into the validity of the reasons for discharging a jury. In some cases in England a Court of appeal had occasion to question the propriety of the reasons for discharging a jury: see Begina v. John Barff Charlesworth  2 F. & F. 326.
3. Mr. Taluqdar for the accused says that the learned Judge has nowhere expressed his opinion that the jury had acted in such a way as to justify a conclusion that they were not impartial. But it appears from the order of the learned Judge that to his mind it was apparent that some attempts had been made to influence three of the jurors, and that the materials placed before the Court were sufficient to show that the Public Prosecutor had reasonable grounds for suspicion against three of the jurors. Though the learned Judge would have been well advised to pu3h the enquiry a little further but when he discovered that there were good grounds for suspecting the impartiality of some of the jurors, it was not only discretionary on his part but it was incumbent on him to discharge the jury in order to give the trial a look of fairness. That the Judge has the right to discharge the jury under circumstances which in his opinion justifies the course has been approved of or tacitly admitted in this Court in the case of Rahim Sheikh v. Emperor A.I.R. 1923 Cal. 724, where it has been held that though the Code of Criminal Procedure has not specifically conferred any right on the Judge to discharge a jury on the ground of misconduct but every Judge has an inherent power to discharge a jury when he is satisfied by such enquiry as in the circumstances he can adopt that reasonable gounds exist for exercising the discretion vested in him to discharge a jury on suspicion. A similar view was expressed in Rebati Mohan Chakravarty v. Emperor : AIR1929Cal57 . There is another fatal objection to Mr. Taluqdar's request to recall the same jury and continue the trial by them. A jury having once been discharged should not be recalled to do duty as jurors in the same case for apparent reasons. It is reasonable to suppose that after their discharge the jurors might have mixed freely with the people and talked about the case with others. In Emperor v. Monmotha Nath : AIR1927Cal199 , it was held that a jury once discharged should not with propriety be recalled in the same case on these grounds I dispose of Mr. Taluqdar's first objection and disallow it.
4. With regard to the second objection relating to transfer the application is opposed by the Crown and the reason given to me is that Noakhali is an easier access from the residence of the accused and the witnesses than Comilla. There is another strong reason for not allowing the case to be transferred from Noakhali and that is that the occurrence took place in the district of Noakhali and the investigation was held by the local police who are apparently in charge of the case. No ground has been made out for the transfer of the case and this prayer is also disallowed.
5. The result is that the rule is discharged. Let the papers be sent down at once with the request that the trial may be commenced as early as possible. I regret very much that after such a protracted trial the case had to be tried anew; but in the circumstance of this case there is no other alternative.
6. I agree. In my opinion the only course open to us in the circumstances which have happened in this case is to direct a fresh trial before another Jury. It is a most unfortunate case. The charges were under Sections 302/149, 326 and 324, I.P.C., and the trial lasted nearly three months from 21st June 1928 till 13th September 1928. 23 witnesses were examined for the prosecution, and 12 for the defence. Arguments were then heard on eight days, and on 7th September after the Public Prosecutor had addressed the Court on four of these dates without apparently concluding his remarks he filed an application, at the 11th hour so to speak, asking that the jury should be discharged upon certain grounds and having reference to incidents alleged to have happened on 4th and 5th September.
7. The learned Judge thereupon after some sort of enquiry recorded an order discharging the jury. There is no provision in Criminal Procedure Code for discharging a jury for misconduct the only sections of the Code relating to the discharge of a jury before verdict being Sections 282 and 283. It has been held, however, by this Court in Rahim Sheik v. Emperor A.I.R.1923 Cal. 724 that a Sessions Judge has inherent power to make such an order.
8. It is a serious matter, however, to discharge a jury, and it seems to me that the learned Judge before taking so important a step should have made a full and careful enquiry. I regret to say that he does not appear to have done so. For example the Public Prosecutor was not examined, though he was obviously a material witness, and indeed it was upon the alleged suspicions of that officer that the learned Judge based his order. It seems to be clear too that the Judge cannot have properly appreciated what is necessary in order to justify such a serious step as the discharge of the jury. For he observes as follows:
The materials placed before the Court are sufficient to show that the Public Prosecutor has reasonable grounds for suspicion against three of the jurors.
9. Suspicion in the mind of a Public Prosecutor is not and could never be recognized as a good or valid ground for discharging a jury. Something much more definite and tangible than this is necessary.
10. But though I think the order cannot be supported, it seems to me to be quite out of the question to set it aside and direct the trial to be resumed before the same jury. There are two reasons why that course cannot be adopted, firstly because an interval of over four months has elapsed since the trial came to its abrupt end and because the jury have by this time presumably forgotten all about the evidence. Even if that evidence were read over to them in order to refresh their memory it could never be the same thing. Matters connected with the demeanour of witnesses should be fresh in the minds of a jury when they are called upon to give their verdict.
11. The second reason is that in the interval the case may have been the theme of discussion in the neighbourhood, and the members of the jury may have formed decided views on the case one way or the other. In this connexion I may refer to the ease of Emperor v. Monmotha Nath Mitter : AIR1927Cal199 and in particular to the remarks made by the learned Chief Justice at p. 147 thereof. The present case is a good deal stronger than that case. For the reasons which I have stated the case cannot, despite the time which has already been spent over it, be allowed to be tried before the same jury. There may be some doubt too whether we can set aside such an order when once it has been made. But we can, and I think ought, to direct a de novo trial before a fresh jury, and if possible before another Judge.
12. Before parting with the case I should like to say that it seems to me to be nothing short of a scandal that the trial of this case, a case of no particular importance and with no special features, should have taken up nearly three mouths of the time of the Sessions Court. The advocate for the defence addressed the Court on five days occupying about four whole days in so doing, and the prosecution took another four days. To my mind this exceeds the limits of reasonable advocacy. It is only right and proper that both sides should have time to place their arguments fairly before the Court and indeed they have a right to do so, but that right is abused when no less than eight days of the Court's time are taken up. Some restraint should be exercised in these matters. Ordinarily a day, or at the utmost two days should be sufficient for both sides to say what there is to be said in a case of this description.
13. There was also a prayer for transfer but no sufficient ground has in my opinion been made out for such an order. I may observe in conclusion that a perusal of the order sheet appears to show that the defence in this case was conducted in what I can only describe as a contumacious and objectionable spirit frequent petitions being filed before the Judge some of them questioning his rulings, and many of them being of a frivolous nature. If it had not been for this attitude on the part of the defence it is possible that the trial would have concluded before the events which from the subject-matter of this Rule happened, if indeed they took place as alleged. For the reasons given I agree with my learned brother that the Rule should be discharged.