1. This case comes before us on a reference made by the learned Sessions Judge of Jessore under the provisions of Section 307 of the Code of Criminal Prose dure. The accused in the ease is one Nazir Ali Beg, and the charge against him was that on the 13th May 1919 he committed murder by causing the death of one Ahmed Shaikh.
2. We have read or had read to us the learned Judge's letter of reference and also the Judge's charge to the Jury, and it is conceded on both sides that the learned Sessions Judge's charge very fairly represents the evidence that was adduced in the ease. We do not wish to go into the merits of the case, beyond saying that having regard to the charge, the letter of reference and what has been stated by the Counsel and Vakil appearing on either side, we cannot say that there is not in this case evidence fit for the consideration of a Jury, We do not go further into the merits, because we are of opinion that by reason of an incident which occurred on the 23rd July, the day before the conclusion of the trial, this case should be remanded for a fresh trial before a fresh Jury, It appears that on the 23rd July, after the conclusion of the evidence and after the conclusion of the address of the Public Prosecutor and before the defence had been heard in full and before the learned Sessions Judge had summed up the case to the Jury, one of the Jurors, a gentleman of the name of Durbesh, in a room occupied by the clerks of the Pleaders of that district, in answer to some questions put to him, made a fairly distinct intimation that he had formed the opinion that the accused was guilty of the charge against him. The result of this was that on the following day both the Public Prosecutor and the learned Pleader for the defence represented to the Judge that Durbesh had thereby precluded himself from continuing as a Juror in the case and they applied to the Judge that there should be a de novo trial before a fresh Jury. Without seeking to lay down any general rule, we are of opinion that in the circumstances of this particular case if he had taken the course suggested by both sides, the learned Sessions Judge would have been very well advised.
3. We are, therefore, of opinion that there is no course open to us but to set aside the verdict of the Jury and to remand the case in order that there should be a fresh trial be for a fresh Jury. We farther direst that the record he returned to the learned Sessions Judge without delay, and we desire farther to express the hope that he will proceed to take up this case as soon as possible after the arrival of the record.