1. This is a Reference under Section 307, Criminal Procedure Code by the learned Additional Sessions Judge of Rungpur against the Jury's verdict of not guilty in respect of a charge under Section 302, Indian Penal Code. On behalf of the prisoner an objection is taken that the Jury was not legally constituted. It appears that 14 Jurors were summoned and 9 were chosen by lot. It is contended that under Section 326, Criminal Procedure Code, not lees than 18 Jurors should have been summoned. Section 326, which is mandatory in its terms, provides in its first clause for a letter to be sent to the District Magistrate requesting him to summon persons named in the revised list 'the number to be summoned being not less than double the number required for any such trial.' Then the second clause provides that the names of the persons to be summoned (meaning double the number required) shall be drawn by lot. With this we have to take Section 274, Criminal Procedure Code, which contains a proviso that 'where any accused person is charged with an offence punishable with death, the Jury shall consist of not less than seven persons and, if practicable, of nine persons.' Reading the two sections together, I do not see why the expression 'the number required for any such trial' in Section 326 should be taken to mean 7 and not 5. On the contrary, it would be reasonable to take the greater number as the number required. Before you form a Jury of 7 you must see whether it is practicable to have a Jury of 9, and this practicability is dependent upon the initial condition that you must summon not less than double that number. It may be argued that even if less than 18 are summoned, so long as more than 9 actually attend, it will be possible to select by lot a Jury of 9; and Section 276 even provides for the contingency of there being a deficiency of persons summoned. But there is a real difference, and it is this. By summoning less than 18, you initially reduce the chances of selection by lot and make it more possible to pack the Jury. The law provides for a certain field of selection and you cannot restrict the field to start with. Thus to summon less than doable the number (in the particular case, 18) would be to defeat the object of the Legislature, and the objection is not to a matter of form only. In the case of a deficiency of persons summoned there may be no selection by lot, but that contingency is provided for by Statute and in that case there is no breach of a statutory duty.
2. In the Full Bench case of Kedar Nath Mahto v. Emperor : AIR1928Cal83 this question with regard to Section 326 did not come up for consideration. But with reference to that section it was remarked: 'It is to be presumed that the total number summoned is that required by Section 326, that is to say, at least ten, for a Jury of five.' In the case of Serajul Islam v. Emperor : AIR1928Cal645 Jurors were summoned, 8 appeared, and 7 were chosen. Rankin, C.J., referred to a. 326 and remarked: 'By Section 326 it is provided that the Sessions Judge should send a letter to the District Magistrate requesting him to summon a number of persons-the number required for any such trial. The exact effect of that section I will not now attempt to define, but it at least sets a minimum standard for the number to be summoned and Section 327 also (where it is applied) can and should be applied so as to comply with this.' The case was, decided upon the footing that it was practicable to have a Jury of 9 This was followed in the case of Dwarika Malo v. Emperor : AIR1930Cal60 . In that case 14 were summoned and it was held that 'to commence with there was failure to comply with Section 326-' This case was also decided upon the tooting that it was practicable to have a Jury of v. This was followed in another case Amir Khan v. Emperor 122 Ind. Cas. 557 : 33 C.W.N. 1053. In that case 14 Jurors were summoned, 5 were absent, and 9 were present and 7 were selected by lot. The question that arose was dealt with in this way-'It is argued that the proviso to Section 274 is mandatory only in so far as it lays down that the minimum number of persons is to be seven and the provision requiring nine persons, if practicable, is only directory: so that when Section 326 speaks of summoning not less than double the number required it refers only to the mandatory portion fixing the minimum of seven, and not to the latter directory portion. We think that it is not possible to accept this construction or to say that the provision that the Jury shall consist of nine persons is in any way less mandatory than the provision that it shall consist of not less than seven. The only difference is that the provision as to the nine persons only becomes operative on fulfilment of the condition that it is practicable to have that number : whereas the provision as to not less than seven persons is absolute in character. Since, then, the Jury is to consist of nine persons if practicable, we think that at the time of summoning Jurors, nine is to be regarded as the 'number required for such trial' within the meaning of Section 326, and, therefore, under that section the number summoned should be not less than double that number. These considerations coupled with the fact that in this case a Jury of only seven persons was in fact empanelled, lead us to conclude that the Jury was not properly constituted, and to agree with the recent decision in Dwarika Malo v. Emperor : AIR1930Cal60 .'
3. Thus the trend of decisions has come down to the view that in the case of an offence punishable with death the number of Jurors to be summoned is not less than 18, Where this is not done, it is a breach of Clause (1) of Section 326, entailing a breach of Clause (2) as well. Can it be said that such a breach is not an illegality? I think not. It may be suggested that in the present case the matter is not important, for there was no prejudice, as 9 Jurors were selected by lot and they returned a unanimous verdict of not guilty. But this matter is important to the accused, for the reference is against him, and he is entitled to take an objection as to the legality of the trial. The position is scarcely different from if, in this case, by a further breach of Section 274, only 5 Jurors were selected and they had returned a verdict of not guilty. The question is, whether in the case of a breach of the mandatory provisions of s: 326, Section 537 of the Code can be brought into play. In Clause (a) of Section 537 the word ''proceedings' may mean many things. Mr. Khundkar for the Grown has suggested that the word means judicial proceedings;if bo, it would exclude Clause (1) of Section 326, for the pending of a letter to the District Magistrate is not a judicial proceeding. But in any case it is noteworthy that Clause (c) of Section 537 is confined to Section 324. This is the only section in the Chapter relating to Juries which is so expressly mentioned, and the implication is that a cognate section like s 326 is not included within the operation of Section 537.
4. In the cases referred to above there was no doubt that the accused had been prejudiced by the trial as the accused were the appellant?; but those cases were decided on the principle that, where there has been a breach of a statutory provision regarding the appointment of a Jury, the subsequent trial is vitiated In the case of Brojendra, Lal Sirkar v. King-Emperor 7 C.W.N. 188, there was a breach of Clause (2) of Section 326 and Section 537 was invoked. The Court rejected this contention on the facts, distinguishing them from those in the old case of Empress v. Jhubboo Mahton 8 C.738 : 12 C.L.R. 233 : 6 Ind. Jur. 639. These cases were, however, long before Subrahmania Ayyar v. King Emperor 25 M. 61 : 5 C.W.N. 866 : 28 I.A. 257 : 11 M.L.J. 233 : 3 Bom L.R. 540 : 5 C.W.N. 866 : 2 Weir 271 : 8 Sar. P.C.J. 160 (P.C.) in which their Lordships of the Judicial Committee laid down that the disregard of an express provision of law as to the mode of trial was not a mere irregularity such as could be remedied by Section 537 of the Code of Criminal Procedure,
5. Holding, as I do, that in this case there has been a breach of the express provisions of Section 326, I am constrained to find that the Jury was not legally constituted, that the defect is not curable by Section 537, and that the trial was, therefore, vitiated. I may add that, on the merits of the case, it is perhaps just as well that there should be a re-trial.
6. We direct that the accused be re-tried according to law. The reference is decided accordingly.
7. I agree.