S.K. Ghose, J.
1. The learned Additional District and Sessions Judge of the 3rd Court, Mymensingh, reports in his letter dated 5th January 1931, that Mr. R. M. Bhattacharjae who triad the Sessions case in question has since retired from service and it is not possible for him to say whether he considered if it was practicable to have nine jurors. He adds that the register of the list of jurors summoned shows that out of the number summoned only seven jurors were present and that all of them were empanelled.
2. Mr. Basu for the appellants has pointed out that this report does not touch the point at issue, namely that the learned Judge did not apply his mind to the question as to whether it was practicable to have nine jurors, and further that he did not consider the possibility, under Prov. 2, Section 276, Criminal P.C., of making up the deficiency by choosing from such other persons as might have been present. Mr. Bhattacharjee for the Crown contends that this section will not apply, because this is a case of special jurors, the learned Judge having by his order dated 29th March 1930, directed that the case should be tried by special jurors. He contends that Prov. 4, Section 276, comes into play and that this is independent of Prov. 2, by which the Court is given a discretion to choose from such other persons as may be present. In support of this contention Mr. Bhattacharjea has pointed out that Prov. 4, comes after Prov. 2, and is therefore not governed by the latter. It seems to me that an argument based on the collocation of the provisos, or even of the sections, cannot settle the point. For instance the provisions as to the framing of the jurors' list and of summoning them, which must necessarily in point of time come before the choosing of the jurors by lot, are embodied in Section 321 and the following sections and not in any sections coming before Section 276. In this connexion, a reference to the history of the relevant sections will not be out of place.
3. It is important to remember that there was no provision for the appointment of special jurors in the mufassil until 1896. In the Criminal Procedure Code, 1872 (Act 10 of 1872) Section 236 provides for an uneven number of jurors, not being less than three nor more than nine. Section 240 provides that the jurors shall be chosen by lot from the persons summoned; there is provision for supplying a deficiency similar to that in Prov. 2 to the present Section 276. But Section 243 of the Code of 1872 provides for making up a deficiency after objections and this is a provision which corresponds to the present Section 279. Then Act 10 of 1875 prescribed the procedure of the High Courts in the exercise of their original criminal jurisdiction. Oh. 5 of that Act deals with juries and it contains four sub-heads of which subhead (a) deals with juries generally; subhead (b) deals with juries in the Presidency towns and sub-head (c) deals with juries in the mufassil. Under the general sub-head (a) there is Section 33 which prescribes the number of jurors and then there is a proviso that in case of deficiency the number required may with the leave of the Court be chosen from such other persons as may be present. Obviously, this general provision applies to the case of special juries in the Presidency town such as is prescribed by Section 38 under sub-head (b). There is no provision for special juries in the mufassil. Section 56 provides for the supply of jurors where objections are allowed and this corresponds to the present Section 279. The Code of 1882, Act 10 of 1882, repealed both the Acts of 1872 and of 1875 and in this Code we get Section 276 with the three provisos as they stand now. But the fourth proviso was absent. The provision for special jurors in the mofussil was made by Act 13 of 1896. It introduced the second clause of Section 269 and the fourth proviso to Section 276 and by these two provisions it prescribed the appointment of special jurors in the mufassil. This Act also made the other provisions for the preparation of special jury list and so forth. Thus we get the Prov. 4, as the last proviso to Section 276 because it was the last in point of time.
4. It is also noteworthy that in Section 279 Sub-section (2) the reference to the whole of Section 276 remained unaltered, so that the provision in. that sub-section that, if there are no jurors present, then the deficiency may be supplied by selection from any other persons present in Court whose names are on the list of jurors, or whom the Court considers proper persons to serve on the jury, will apply to the case of special jurors as-well. I may mention in passing that in England in the case of special jury, when there is a deficiency in the number of persons summoned to attend, it is not always necessary that the Court should go back to the list of special jurors. When by reason of the persons summoned to attend not appearing, or for other cause 'there is insufficient number of jurors to discharge the duties the Court may: (i) cause any deficiency on the special jury panel to be made up out of the common jury panel, or any deficiency on the common jury panel to be made up out of the special jury panel; (ii) at the request of any interested party command the sheriff to add and annex to existing panels the names of any persons there present or to be found (tales de circumstantibus), (iii) in the exercise of its inherent power order the return by the sheriff of a new or enlarged panel of jurors. It is also said that in practice it is not unusual to requisition any person, whatever his residence or his qualification may be: see Halsbury's Laws of England Vol. 18, Article 620 p. 252. Also Archbold's Criminal Pleadings, Edn. 27, p. 194.
5. Coming back to the present Criminal Procedure Code and taking the sections as they stand now, it will be seen that all the four provisos to Section 276 are really provisos to the main clause of that section. In proper cases, all the provisions must be interdependent. The main-clause lays down the general rule that all jurors shall be chosen by lot from the persons summoned. Prov. 4 lays down a rule which is applicable to special cases, namely, that in any district in which the Local Government has declared that the trial of certain cases may be by special jury, the jurors shall, in any case in which the Judge so directs, be chosen from the special jury list.
6. Mr. Basu at one time contended that up to Section 275 there was no mention of special jurors and that Prov.4, Section 276, mentioned special jurors for the first time. This contention is not strictly correct, because there is Section 269, Sub-section (2), which makes provision for the Local Government to declare that in certain districts the trial of certain offences may be by special jury. However this does not affect Mr. Basu's contention, because the two sections must be taken together as containing the provision to show where special jurors are to be chosen, Sections 325 and 326 merely provide for the framing of lists and for summons. Now, the question is, what would happen in case of deficiency of persons summoned. This is provided for by Prov. 2, Section 276. Obviously, this is a special provision to meet an emergency so that there may not be a deadlock. Such emergency may occur in the case of special jurors, just as much as in the case of common jurors. Therefore it stands to reason that the legislature intended to provide a remedy in both cases. Otherwise in the case of special jurors, if there is deficiency, the Court will have no option but to adjourn the trial and summon a fresh batch of jurors from the special jury list. Mr, Bhattacharjee in fact contended this, but I think the argument is untenable. The word 'jurors' in Prov. 2, is a general term, meaning both special and common jurors. Section 276 and the following Sections 277, 278, and 279 must be read together as prescribing the procedure for empanelling jurors. I have already referred to the express provision in Sub-section (2), Section 279. The reference in that subsection is to the whole of Section 276, and there is nothing to show that Prov. 4, to that section is excluded. Moreover, there is no real difficulty, because the Court is to find from amongst those present parsons of suitable standing to serve on the jury, whether common or special. It cannot be argued, because the words
whose name is on the list of jurors or whom the Court considers a proper person to serve on the jury
occur in Sub-section (2), Section 279, and do not occur in Section 276, Prov. (2), therefore in the latter case, that is to say, in the case of selections before objection, the Court has no guidance. As I have said already, these sections provide for one continuous procedure in the empanelling of the jury. On this principle was decided the Full Bench case of Kedar Nath Mahto v. Emperor : AIR1928Cal83 which prescribed the procedure to be followed in empanelling the jury. I may note in passing that one of the cases in that reference to the Full Bench, namely, Appeal No. 468 contained a charge under Section 302, I. P.C., and presumably it was tried by special jurors. On the other hand, it is a condition of an emergency provision that the selection must be made from persons present. In particular cases, this may not be desirable. For instance in an English case King v. Thomas Dolbg [1823-24] 2 Bar. & Cr. 104, it was argued at the Bar that it was not desirable to make up the deficiency from bystanders, because there was a danger of allowing a coroner or a sheriff to secure the attendance of persons chosen by himself and thereby in effect to select a part of the jury. Abbot, C.J., however remarked:
This objection is in direct and manifest contradiction to the whole principle and practice of the common law' and ' even under the statute 35 Hen. 806, which gave the tiles de circumstantibus, as it is usually called, a discretion is to be exercised by the officer. The provision was made as appears by the words of Section 5 for the more speedy trial of issues
not for the prevention of partiality, as was suggested at the Bar. So far as Indian Courts are concerned, a more relevant authority is furnished in the case of Abed Alt Fakir v. Emperor : AIR1929Cal723 . Mr. Bhattacharjee's contention is, therefore untenable. It cannot be said that in this case, because a special jury was called, Prov. 2 to Section 276 would not apply. It would apply, and the point arises in connexion with the point whether the Judge applied his mind to the question as to whether it was practicable to have 9 jurors. That was important so far as the prisoners were concerned. Mr, Bhattacharjee has next argued that the onus was on the appellants to show that the Court did not consider the practicability of having 9 jurors. But we have already pointed out that it does not appear from the terms of the Judge's order that he at all applied his mind to the question as to whether it was practicable to have 9 jurors and for that reason we called for report. It is the duty of the Judge to consider whether it is practicable to have 9 jurors and there is no duty cast upon the accused. Moreover, the objection touches the very constitution of the Court and therefore it is not correct to say that the onus is upon the accused or the appellants.
7. Mr. Basu has also pointed out that as a matter of fact in this judiciary there are four or five Sessions Courts working at the same time and that therefore it is very likely that on the particular day sufficient number of jurors of suitable standing were present. In these circumstances, we consider that we have no choice but to hold that the learned Judge never applied his mind to the provisions of Section 274, that the jury was not properly constituted, and that the illegality has vitiated the whole trial. This also affects the case of the other appellants who were not charged under Section 302,I. P.C., but were tried jointly with appellant 1. The latest case, on this point is that of the Superintendent of Legal Affairs v. Benoser Ahmed : AIR1930Cal716 .
8. We therefore reverse the verdict of the jury, the order of conviction of the appellants, and the sentences passed upon them, and we send back the case to the lower Court for retrial.
9. Those of the appellants who are on bail will remain on the same bail pending retrial.
10. I agree.