1. In this case an objection has been taken to the empanelling of the Jury. That objection and the grounds thereof will appear from the affidavit of one Hazarat Mandal filed on behalf of the appellants.
2. It appears that four out of ten persons summoned attended the Court. Two out of the four persons were objected to. Thereupon certain persons not present in Court were asked to come to Court for the purpose of being called to serve as Jurors. This course which has been adopted by the learned Judge is objected to on behalf of the appellant as being one not in accordance with the proviso contained in Section 276 of the Code of Criminal Procedure and in support of that contention our attention has been drawn to the judgment of this Court in Mohammad Sagir-ud-Din v. Emperor : AIR1928Cal551 decided on the 23rd March, 1927. We think that the objection must be allowed. The persons who were asked to attend were not persons present in Court and that being so, they could not be chosen to serve as Jurors in the manner adopted by the learned Judge.
3. The result, therefore, is that the conviction and sentence are set aside and the case is sent back for re-trial by a Jury to be empanelled in accordance with law.
4. A copy of the judgment of this Court in Mohammad Sagir-ud-Din v. Emperor : AIR1928Cal551 will be forwarded to the learned Judge for his information and guidance.