George Claus Rankin, C.J.
1. I have had an opportunity of reading the judgment which, is going to be delivered by Mr. Justice Buckland, with which I agree.
Philip Lindley Buckland, J.
2. Under Chap. VII, Rule 5 of the Rules of the Court, the three Appeals Nos. 377, 468 and 302 of 1927 have been referred to a Full Bench for the purposes of a final determination of the construction to be put upon the second proviso to Section 276 of the Criminal Procedure Code.
3. So far as the facts of these cases relate to the manner in which the Juries were empanelled, they are set out in the order of reference as follows:
In Appeal No. 377, the accused were charged under Section 147 and under Section 325 read with Section 149 of the Indian Penal Code. Ten persons were summoned to serve on the Jury. Of these ten, six persons attended. Of these six, it was ascertained that one was serving in the office of a society of which the Public Prosecutor was the President. An objection being taken to this individual the objection was sustained and he was discharged. This left five persons who had been summoned. The learned Judge chose one man from among the bystanders in Court, added his name to those of the five persons summoned and from these six the Jury of five was chosen by lot.
In Appeal No. 468, the accused was charged under Section 302 of the Indian Penal Code, The number of persons summoned does not appear from the affidavits, but it is agreed that seven Jurors were present, two of whom were European gentlemen. These two were discharged on the ground that they did not understand Bengali. Two persons were chosen from among the bystanders and added to the five who remained, thus making a Jury of seven. It is said that in these circumstances there was no choosing by lot.
In Appeal No. 302 the charges were laid under Sections 304, 147 and 304 read with Section 149 of the Indian Penal Code. Twelve persons had been summoned to serve on the Jury. Seven of these attended, of whom one was excused. Out of the remaining six, five Jurors were chosen by lot.
4. The questions which arise for determination in each case are - (1) Was the Jury empanelled as required by law (2) If not, must the convictions and sentences be set aside and a new trial ordered ?
5. The determination of the first of these two questions will depend in each case on the view taken of the proviso to be considered. Consideration of the second question only arises after the first has been determined.
6. Stating the matter broadly, there are two opposite views, which have been submitted, of the effect of the proviso. One is that in the event of there being a deficiency of persons summoned a sufficient number of persons from among those present may, with the leave of the Court, be added to the number of persons summoned who have attended, and that a choice should then be made by lot from the composite body so formed.
7. The other view is that the choice by lot referred to at the beginning of the section is confined to a choice by lot from among the persons summoned, and that when the deficiency appears, the number of Jurors required may be chosen from such other persons as may be present, and the Jury thereby completed without any further drawing of lots.
8. Whichever view is the correct one, it is subject to the right of the prisoner to object to a Juror. The sections relating to Such right' do not directly affect the construction of the proviso, but they may be considered for the purpose of arriving at its correct meaning.
9. The view first stated is that which has been advanced on behalf of the appellants. The argument presented to us proceeds in the first instance from Section 326, which provides for summonses to be issued to the number of Jurors required for the Sessions, 'the number to be summoned not being less than double the number required for any trial.' Assuming a Jury to consist of five, at least 10 persons must be summoned, and it is said that that figure is to be taken as the number of persons among whom lots are to be drawn for the purpose of choosing a Jury. From this point, it is argued that the words 'deficiency of persons summoned' means deficiency of persons summoned for the purpose of making up the minimum number of 10 among whom lots are to be drawn. This argument then leads to the conclusion that the word 'Jurors' in the proviso refers to potential Jurors, or, as they (Sic) to 'persons summoned to act as such.'
10. It is not possible to find any logical reason for this indiscriminate, and indeed, one might say, careless use of the word ''Jurors' within the compass of one section for the purpose of indicating different sets of persons. The argument, however, has this support, so far as it is, a question of mere terminology, that Sections 327 and 328, and it may be others, refer to 'Jurors' when what is meant is persons directed to attend for service as Jurors.
11. The argument also involves that the expression 'chosen by lot' and the word 'chosen' have been both employed to convey the same meaning, viz., a selection by ballot. Again, for this no logical justification can be found, and the two can not be regarded as synonymous unless there is no other possible construction to be placed upon them.
12. In the course of the argument it was suggested that the ballot required by Section 326 (2) as to the persons to be summoned, and that required by p, 276 were intended to benefit the prisoner, by ensuring as far as possible an unbiassed and impartial Jury, chosen haphazard, and that this furnishes an additional reason for requiring that even when the proviso has to be invoked there shall nevertheless be a ballot. With this, in some measure, I agree, but inasmuch as the prisoner has the right of challenge conferred by Section 278, I should be disposed to think that the object of the several ballots was as much to ensure the fair and impartial incidence of the duty of service upon Juries upon those who are liable to it.
13. The position when a successful objection to a Juror has been made is dealt with by Section 279. In the first instance, the place of the Juror is to be supplied by any other Juror attending in obedience to a summons and chosen as Section 276 provides, that is by ballot. If no such Juror is present, the place of the Juror to be supplied shall be filled by any other person present whose name is on the Jury list or whom the Court considers a proper person to serve on the Jury, subject, of course, to a successful objection, as stated in the proviso to Section 279. Here the argument for the appellants has to concede that in such circumstances no ballot is possible.
14. In my opinion, the view which I have discussed is fallacious, and proceeds entirely from an erroneous conception as to the (Sic) the course of argument, we were informed that it is the practice in District Courts to ascertain beforehand how many of the persons summoned to serve as Jurors have attended and thus determine the 'deficiency' to be supplied. If that is the case in my judgment, it is a practice which is not authorised by law and should be discontinued. No doubt, persons summoned as Jurors who do not attend are liable to fine. But the stage at which it should be ascertained whether they have attended or not is not reached until their names are called out for the purpose of empanelling a Jury.
15. The procedure to be followed in nominating a Jury is laid down in Chap. I, Rule 54 of the G. C. Orders. If carefully observed, step by step, no difficulty will occur. It is to be presumed that the total number summoned is that required by Section 326, that is to say, at least 10, for a Jury of 5, and in the aggregate there may be more. This will depend upon the number required for the Sessions and stated in the letter to the District Magistrate. On the names being drawn from the box, one by one, each after another, and called aloud as each is drawn, it will become apparent who has not attended, and it is only when all the names have been so drawn and a number of persons insufficient for the purpose of constituting a Jury have answered to their names that the deficiency will become manifest. The deficiency will be the number by which the number of persons answering their names and empanelled falls short of the number of persons of which the Jury should consist. It is then and not until then that, in my opinion, the proviso begins to operate, and on that point being reached, the Court has to exercise a discretion whether to allow persons to be chosen from among the bystanders in sufficient number to supply the deficiency, or whether to adjourn the case for a fresh Jury to be summoned.
16. The circumstances in which such discretion should be exercised, and how, do not call for consideration in this case. It suffices to say that it must be exercised in such a way as to secure to the prisoner a fair and impartial trial.
17. I should like to draw attention to a recent alteration of the rule referred to, which provides that as the name of each Juror is drawn it shall be called aloud, and upon the Juror appearing, the prisoner or person to be tried shall be asked it he objects to be tried by such Juror. This furnishes the opportunity of challenging under Section 277, and if the procedure proscribed is followed no difficulty will arise in compliance with the provisions of Section 279 (2), since all the names of persons summoned will have been placed in the box.
18. I have endeavoured to state my conclusions in a form which may be of practical utility and I will now summarise them. The section provides, in the first instance, for a ballot among the persons summoned under Section 326, all of whom may or may not be present. When their names have been exhausted, if a Jury has not yet been empanelled, the Court may, in its discretion, allow the number requisite to complete the Jury to be chosen from among the bystanders, or may adjourn the case for a fresh Jury to be summoned. As each name is drawn and called aloud, if the person summoned answers, or as each Juror is chosen from among the bystanders, should that point have been reached and that course be permitted the accused shall be asked if he objects to be tried by such Juror. Should the objection be allowed, the Court should proceed as laid down in Section 279(2), adopting the course prescribed according as there are or are not persons left from among those summoned whose names have not been drawn.
19. It now only remains to give, with respect to the three appeals, the replies to the questions submitted to us, but before so doing I may state that it follows from the foregoing that Bholanath Hazra v. Emperor (2) and Rosanali v. Emperor (1) so far as they lay down a different principle should not be followed.
20. As regards Appeal No. 377 the answer to the first question is that the Jury was not empanelled as required by law. In this case, therefore, the convictions and sentences will be set aside and there must be a re-trial with a Jury duly empanelled in the manner prescribed. The accused persons in this case will be on bail to the satisfaction of the District Magistrate.
21. As regards Appeal No. 468 the Jury was in effect empanelled as permitted by law from the five persons summoned and the two chosen from among the bystanders, and the case, therefore, will be remanded to the Division Bench to dispose of it on such other points as may yet have to be determined.
22. As regards Appeal No. 302 the Jury was empannelled as required by law and there will be the same order of remand in this case as in Appeal No. 468.
23. I agree and have nothing to add.
B.B. Ghose, J.
24. I agree in the judgment just now delivered by my learned brother Mr. Justice Buckland.
25. I agree in all that my learned brother Buckland, J., has said in his judgment and desire to add a few words.
26. To put upon the second proviso to Section 276 any of the interpretations contended for on behalf of the appellants would lead to an absurd position which could never have been intended. Suppose out of 10 persons summoned to act as Jurors, 5, namely S/1 to S/5 attend. According to one of these interpretations at least one more, say P/1 will have to be taken from the persons present in order that there may be a choosing of 5 by lot out of 6 ; according to another, at least 5 more, say P/1 to P/5 will have to be so taken so that there may be an effective lottery with equal chances; according to a third, the whole body of persons present, say P/1 to P/X will have to be taken, though on the face of it such a procedure would be impracticable. According to all the said interpretations, the word 'chosen' in the proviso means 'chosen by lot.' All of the two series S and P will, therefore, be in the ballot box. If Sections 277 to 279 are now applied, suppose the drawing gives one of the S series as the first man, and he being objected to with success goes out. So long as the drawing does not give another of the S series, but of the P series only, all the latter will have to go out automatically and will not have to serve, though never objected to, unless one or more of them are again selected from the general body under the last part of the first paragraph of Clause (2) of Section 279. Could such a result have been intended ?
27. In my opinion Section 276 with all its provisos is a general section dealing with the general nature of the procedure and the details of that procedure are given in Sections 277 to 279. I am also of opinion that the words ' with the leave of the Court' in the second proviso to Section 276 give a discretion to the Court to proceed or not to proceed in this particular way, namely, allowing persons in Court to come in as Jurors, accordingly as it thinks fit : it is not difficult to imagine cases in which such a procedure will not be resorted to. I am further of opinion that the words 'the place of such Juror shall be supplied by any other Juror attending in obedience to a summons and chosen in manner provided in Section 276' in Section 279, Clause (2) clearly point to S series only taking part in the ballot, and that the section cannot be worked if P series are to take part in it.