1. In this case eight accused persons were convicted by the Additional Sessions Judge of Mymensingh and a jury of seven on charges under Section 302 read with Section 34, I.P.C. The jury were not unanimous, four of them being in favour of a conviction and three in favour of an acquittal.
2. On this appeal Mr. Suhrawardy takes the point that according to the order of the learned Judge himself the jury was empanelled in a manner which is contrary to law and which is entirely outside the scope of Sections 276 and 279, Criminal P.C. The learned Judge has recorded:
The names of all the 14 jurors who were summoned for the case were called by lot one after another. Nine of them were found present of whom three being challenged by the pleader for the defence, were discharged. Six being unchallenged were elected to sit at the trial. Another person whose name was on the juror's special list was therefore requisitioned from the local school to sit as a juror and being unchallenged was accepted as the 7th juror. They then elected their foreman and were duly sworn.
3. If the learned Judge would look again at Sections 276 and 279 he will find that there is no provision for requisition of jurors from a local school or from anywhere else. He will find that selection will have to be made from jurors attending in obedience to summons and chosen in the manner provided by Section 276 or if there is no such other juror present then any other person present in the Court, whose name is on the list of jurors or whom the Court considers a proper person to 'serve on the jury may be selected. I think the learned Judge was wrong in acting in contravention of the provisions of the section and in inventing a procedure which is entirely unauthorized. It is quite true that the person whose services were obtained must at some stage have complied with the condition of being present and it is a point to consider whether or not the requirement of being present in Court finds its place in the section with any intention to limit the arbitrary power to choose a juror entrusted to the learned Judge or whether it merely recognizes the fact that in the ordinary way a person not present will be of no immediate assistance as a juror. This matter has been more than once considered. I understand from Mr. Bhattacharjee that there are four unreported cases of this Court on this point and two of them have been placed before us. They all hold this procedure to be bad.
4. In these circumstances, it appears to me that we have no option but to enforce the principle that the jurors are to be empanelled as required by the sections.
5. The appeal must be allowed. The convictions and sentences are set aside and a retrial is ordered.
6. We make no order as to bail.
7. I agree.