1. This application raises a novel point on which there does not appear to be any authority. The petitioners were put on their trial before the learned. Sessions Judge of Rajshahi and a Jury upon charges under Sections 436 and 34 of the Indian Penal Code, and the trial began on the 28th February last and continued from day to day until the 6th March. On that day when 11 witnesses for the prosecution had been examined the learned Judge recorded in the order-sheet that it had come to his notice that some of the Jury had been seen associating with the man looking after the case for the accused. The learned Judge appears to have held some sort of enquiry the nature of which is not specified though I will assume it was sufficient and that he was reasonably satisfied as to the conclusion at which he arrived, and thereupon stated, that he had reason to believe this to be the case, and he consequently ordered the Jury to be discharged and the case to be tried de novo.
2. These are all the facts with which we have to deal and, it is now objected on behalf of the petitioners that the order discharging the Jury and directing the trial to re-commence de novo was made without jurisdiction,
3. The contention submitted to us is that a case such as this is not provided for by the Code of Criminal Procedure and that Sections 282 and 283 are exchaustive as regards discharging a Jury during the continuance of the trial; there are other sections referring to the discharge of a Jury such as Section 305; but those are sections which only apply at a later stage. The sections, however, do not profess to deal with the circumstances in which a Jury may be discharged, rather it is the other way and, in the circumstances to which they refer, they state that that course may be pursued.
4. The argument submitted to us involves the proposition that whatever the stage of the trial maybe, however gross the misconduct of a Jury, and Lowever patent to everybody concerned it may appear, there is no remedy but that the trial must continue to run its course to its conclusion, when, it is submitted, it will be open to the Presiding Judge to submit the case to the High Court under Section 307, Criminal Procedure Code. So farcical a procedure would only bring the administration of justice into disrepute. In my judgment where the question of misconduct on the part of the Jury or other similar sufficient cause arises the Sessions Judge has inherent power to discharge the Jury and empanel another. It is true that the Code does not provide for such circumstances but, on the other hand, the presumption that Jurors will discharge their duties without impropriety may explain the omission. The power to discharge a Jury on such, grounds is one not to be exercised lightly nor until the Judge has satisfied himself by such form of enquiry as in the circumstances he can adopt that reasonable grounds for exercising such a right exist. The learned Sessions Judge in this case has held an enquiry. With his statement as to that I am satisfied and the power being one that is not covered by any section of the Code of Criminal Procedure I think it suffices to say that the matter is one for the Judge's discretion. So far as it deals with any point specifically, the Code of Criminal Procedure must be deemed to be exhaustive and the law must be ascertained by reference to its provisions but where a case arises which obviously demands interference and it is not within those for which the Code specifying provides, it would not be reasonable to say that the Court had not the power to make such order as the ends of justice require. Holding, therefore, as I do, that the Jury may be discharged in circumstances other than those specifically provided for by the Code, Section 308 cannot be held to relate exclusively to the discharge of a Jury in the circumstances stated in the preceding sections. The learned Sessions Judge has in effect made an order under that section though he has not referred to it and there is, therefore, no reason to interfere. In my judgment this Rule must be discharged.
5. Certain persons were on their trial before the Sessions Judge of Rajshahi and some 11 witnesses for the prosecution had been examined. It was then brought to the notice of the learned Judge that some of the Jury had been seen associating with the man who was looking after the defence. The Court held an enquiry and being satisfied as to the truth of the allegation ordered the Jury to be discharged and -the accused to be tried de novo with a fresh Jury. The present petitioner, the accused, has moved this Court on the ground that the Judge had no jurisdiction to discharge the Jury and order a de novo trial. He contended that the case was not covered by either Section 282 or Section 283 of the Criminal Procedure Code.
6. No doubt, the contention is correct so far that these sections do not provide for the discharge of the Jury for improper conduct during the trial. In England the Judge has the power to discharge the Jury if a necessity arises and whether the necessity has or has not arisen is for the Judge alone to decide and his decision is not open to review. In one case [Reg. v. Ward (1869) 10 Cox C.C. 573 : 17 L.T. 220 : 16 W.R. 281] this course was followed because one of the Jurors had left the box without leave. Such discharge is not equivalent to a verdict of acquittal and the prisoner can be remanded for afresh trial [Reg. v. Davison (1860) 8 Cox C.C. 360 : 2 F. & F. 250.] There is in this country' no decided case bearing on this point. In one case tried at the High Court Sessions the Jury before hearing the evidence for the defence wanted to give their verdict. Counsel for the. defence pressed for their discharge on the ground of misconduct. The prosecution objected to the course. The point was not decided as the Advocate -General entered a nollee prosequi Emperor v. Olu Mohamad 7 C.W.N. xxxi (31). The learned Vakil for the petitioner contended that the trial should have been allowed to proceed and then apparently that the point that some of the Jury had been associating with the accused's man might be taken in appeal if necessary. The objection to such a course is obvious and in the present case the further difficulty arises that the Jury had been discharged. It, however, seems quite clear that unless the Judge had the power to discharge the Jury in cases of misconduct great difficulties must arise, and in many cases a serious miscarriage of justice and although the Code does not specificially provide for such contingencies it seems clear that the Judge must have, such powers.
7. In this view the order of the learned Sessions Judge was right and I would discharge this Rule.