Akbar Ali vs Emperor

Ross, J.—The appellant was found guilty by the unanimous verdict of a jury of five persons on a charge u/s 376, I.P.C., and was sentenced by the Assistant Sessions Judge of Saran to five years rigorous imprisonment and a fine of Rs. 200.

The principal contention in this appeal is that the Jury was not properly constituted because only five of the persons summoned to act as jurors were present and, as five were required, there could be no choice by lot as prescribed by Section 276, Criminal P.C.

An affidavit has been filed on behalf of the appellant in which it is stated that only five jurors were present in Court although ten were summoned; and that the Court drew the lot including those jurors who were absent and some absent jurors were also chosen by the lot, but they being absent the Judge obtained substitutes for them by the process of elimination. It is also stated that objection was taken to this process of selection and to one of the Jurors selected. The Assistant Sessions Judge has recorded that the five jurors named in the order sheet were chosen by lot without objection on either side. This is conclusive that no objection was taken to any of the jurors; and the statement in the affidavit that an objection was taken to one of the jurors seems to rest on no better foundation than a mistake in a certified copy of the list of jurors summoned to be present, drawn up apparently by the clerk of the Court, at the bottom of which is entered the remarks:

Five present chosen without objection on either side;

this has been wrongly entered in the certified copy as:

Four present chosen without objection on either side.

The affidavit itself shows that the Judge complied with the rules framed by the High Court u/s 276. The argument is that this procedure disregards the positive direction that the choice is to be by lot because, ex hypothesi, a lot was impossible. The essence of the objection is that there was no choice. Now clearly, if the five persons present were unobjectionable and not objected to by either side, there is no merit in the argument, and if it has any point at all, the point must be technical. In my opinion there is no point. The section means what it says: the jurors are to be chosen by lot from the persons summoned to act as such. That is to say, it states the source from which and the method by which the Jurors are to be chosen; the source is the persons summoned; the method is the method of chance and is prescribed for the purpose of obtaining the number of jurors required from a number at least twice as large: see Section 326(1). The only difficulty that can arise is that the number drawn may, owing to absence or objection or both, be less than the number required. This difficulty is met by the second proviso which enables the Judge to go to another source of supply, viz. the other persons present in Court, and in that event the method of chance is no longer to be used. Section 279(2) indicates how the choice is to be exercised in the case therein referred to, the method being a rational method of selection. The section then, read according to its plain language, covers every case. The argument for the appellant adds to the section two words which are not in it, viz. the words "and present" after the words "summoned to act as such" and this at once introduces a case--the present case--which is left unprovided for. Apart from the fact that there is no justification for adding these words to the language used by the legislature, it is, in my opinion, sufficiently clear from the consequence to which it leads that this construction of the section is wrong. In Bhola Nath Hazra and Others Vs. Emperor, a different view has been taken. In that case their Lordships observed:

In the present case there being only five jurors present and five being the necessary quorum for a jury, plainly there were not enough jurors present to permit of their being chosen by lot. The proper course, in my opinion, therefore, for the Judge to have followed was to make good the deficit by choosing some other parsons who were present and adding their names to the five jurors and from the whole body choosing the necessary five by lot to act as the jury in the case.

With all respect, it seems to me that there is nothing in the section to authorize this course; and that if this be a construction of the second proviso, it is contrary to the decision in The Government of Bengal Vs. Muchu Khan, . In that case the facts were that fourteen jurors had been summoned and only three appeared. From the number summoned it would appear that the jury was to consist of seven persons although this is not stated in the report. Four persons who happened to be in the precincts of the Court were called as jurors to make up the number. It was held that there was nothing illegal in this and that the words in Section 276 of the Code that "the jurors shall be chosen by lot" did not apply to the proviso. The second clause of Section 279 deals with a case where there is no effective lot--the case where the jurors present are exhausted without completing the number--and it provides how the number is to be completed. In my opinion, therefore, there was no irregularity in the constitution of the jury.

If there was any irregularity in this matter, the further question arises whether it is cured by Section 537. The decision in Bhola Nath Hazra and Others Vs. Emperor, is against such a view; but in Empress v. Jhubboo Mahton [1882] 8 Cal. 739 , where the jurors were selected by the Judge instead of being chosen by lot, it was held that as no prejudice was shown the verdict could not be interfered with. This case was not dissented from in Brojehdra Lal Sirkar v. King-Emperor 7 C.W.N. 188, where it was distinguished on the ground that no objection was taken to the selection of Jurors. In the present case the Judge''s order shows that no objection was taken and in my opinion, if there was any irregularity it is cured by Section 537.

On the merits of the case the learned vakil for the appellant contended that there was misdirection, or non-direction amounting to misdirection, in the charge to the jury on four points, namely: (1) the learned Assistant Sessions Judge did not correctly state the effect of the medical evidence; (2) he did not bring to the notice of the Jury the improbability of the girl having been carried from the field, where she was working, to the place of occurrence; (3) the charge was inadequate on the question of the identity of the accused; and (4) the attention of the jury was not drawn to an alleged delay on the part of the Sub-Inspector of Police in submitting his diary. It is sufficient to say that, in my opinion, there is no substance in the argument. The charge, read as a whole, is a fair and adequate presentation of the case and there was no misdirection.

The question of sentence remains. According to the medical evidence the appellant is a youth of 15 or 16 years. The sentence of fine is inappropriate; and the sentence of imprisonment is much too severe, regard being had to the age of the appellant. While, therefore, upholding the conviction, I would reduce the sentence to two years'' rigorous imprisonment and set aside the sentence of fine.

I ought to point out the irregularity in the questioning of the jury by the Assistant Sessions Judge. He should simply have taken their verdict on the charge without questioning them in detail.

Wort, J. I am in agreement with the judgment of my learned brother as regards the question of the alleged misdirection. In my opinion, there is no such misdirection nor is there such nondirection as to amount to misdirection in this case. In any event it cannot be said that the accused has been prejudiced in any way.

The main ground of appeal is, however, that regarding the constitution of the jury. It is a little difficult to ascertain from the records of this case the facts on this point, but the learned Government advocate, as I understand him, is prepared to admit that, for the purposes of this argument, only five jurors, of those summoned, appeared and answered to the summons on the day of the trial.

In that state of affairs it is argued by the learned vakil on behalf of the appellant that Section 276, Criminal P.C., has not been complied with, inasmuch as in the circumstances that five jurors were required for the panel there has been no choice by lot from the persons summoned; and that, therefore, the trial was no trial at all, the tribunal not being constituted according to law.

The argument on behalf of the appellant amounts to this that whatever process may have been adopted, where you require five and that choice is being made from five only, there cannot be under any circumstances a choice by lot. That, of course, is obvious.

On behalf of the Grown it is argued, inter alia, that as the order-sheet states that five jurors were chosen by lot that is conclusive, although the learned Government advocate admits as I have already stated that the choice must have been made from only five persons. That all the names of the ten jurors summoned were placed in the box according to the usual practice, and that as these names were drawn out there was a choice by lot and a compliance with the section. With great respect to the learned Government advocate, in my opinion, if I were to hold that, in the light of the facts admitted, it would be to say the least disingenuous.

Now let me say at once that we are not in any way concerned in this case with the possible difficulties that may arise by reason of a decision unfavourable to the prosecution in this case. If such difficulties arise they must be dealt with according to law, and if they are insuperable it may be that legislature may have to step in and deal with them in its wisdom by legislation.

We are not concerned with cases in which there may be no knowledge of the fact whether all or only some of the summoned jurors are present, that is to say, cases in which there may not be a choice by lot in fact, although by reason of the Court''s being unaware of the facts and that in taking names from the box a panel may be obtained before the ten names in the box are exhausted, the Court may be unaware of a non-compliance with the law.

We are concerned with a case in which, in the light of the knowledge we now possess, there could not have been a choice by lot. It would appear to me that knowing the facts as we do there can be no conclusion other than that the law was not complied with.

However, it is argued that, reading the whole of Section 276 with its provisos, the Court did all it was entitled or called upon to do, and that, therefore, there had been a choice by lot within the meaning of the section. I have said and repeat that where you require five jurors and you have five only to choose from, there cannot be a choice by lot and that is merely repeating the obvious. The first part of the section is mandatory and, in my opinion, governs the remainder, and if there is placed upon the remainder of the section, which while not clearly and in terms making exceptions to the general rule, a construction which in effect whittles down the plain meaning of the first part, then, in my opinion, that construction cannot by reason of the canons of construction be held to be sound.

The second proviso to the section is to the effect that when there is a deficiency of persons summoned the number of jurors required may with the leave of the Court be chosen from such other persons as may be present.

It is argued that the number of jurors required here was not deficient and, therefore, the choice being made from the box in which the names were placed, there was a compliance with the section.

In my opinion, that argument amounts to this, that when the section says persons summoned it means the number of persons required for a panel. The answer to that appears to be that the section does not say so but refers clearly to the deficiency of the persons summoned, and secondly that the argument would amount to this, that where the proviso does not come into action then the Court need not call upon persons in Court to make up the deficiency, but it may go through the formality of choosing by lot, and that will be sufficient, although there cannot be in the circumstances in fact a choice by lot. That, in my opinion, would reduce the section to an absurdity, also to hold that that method would be sufficient in the circumstances, is tantamount to saying that all that is necessary is a paper transaction. A further argument on this point is put forward based on the rules made under the section. I do not see anything in those rules which detracts from the plain meaning of the section and if there is any such thing I have no hesitation in stating that the rules to that extent are ultra vires. Other sections of this part of the Code have been referred to by the prosecution; Section 279 which deals with objections to jurors has been mentioned. It is argued that if objections are taken to jurors by the accused the same result as to deficiency in numbers may result. That may be so but the section we have to construe is not affected. The section must be complied with and no objection, if valid, can interfere or in any way alter its mandatory provisions. Another section referred to is 536 but that relates to another part of the argument on behalf of the Crown and will be dealt with later.

The section which has a direct bearing on Section 276 is Section 326 which provides, inter alia, that the number of jurors summoned shall be double the number required. That is to my mind a clear indication that all precautions shall be taken to insure a choice by lot in reality.

This question is not without authority. To deal in the first instance with cases quoted on behalf of the Crown: the first case is The Government of Bengal Vs. Muchu Khan, which decided that in the case of jurors being taken from those present in Court it was not necessary to choose from them by lot. This case deals with the proviso and does not in any way deal with the first part of the section nor with facts which are present in this case. It is argued that there need be no choice from people present in Court unless the number of summoned jurors is less than the number required for a panel and that being so of necessity there was no choice by lot in the strict sense; of those summoned jurors, which clearly indicates that in certain circumstances the section is complied with although no lot was strictly taken. In the first place that places a construction on the proviso which is by no means clearly established. In the second place I am clearly of the opinion that, even if we were concerned with the proviso, which we are not, the only construction to be placed on this authority results in the clear intention of the section being tampered with then this case is of doubtful authority. But I do not so hold.

There is no doubt in my mind that the section was not complied with in this case and I am strengthened in my view by the case of Bhola Nath Hazra and Others Vs. Emperor, which is directly in point.

There is the further point to consider. Whether, holding as I do that the jury was not properly constituted, the defect is curable. In other words: Was the accused prejudiced? In my opinion the constitution of the tribunal goes to the root of the jurisdiction and is not a curable defect.

We have been reminded of Section 536 which makes a trial, with the aid of assessors when there should have been a trial by jury and vice versa, not necessarily bad. This appears to be in favour of the appellant rather than the prosecution. If the legislature has been careful to deal with certain irregularities by statute and to leave others untouched, it would appear to be a clear indication that Legislation is necessary to cure defects such as those dealt with and the one before us. Section 537 is also referred to. This section deals with certain specified irregularities and does not mention nor in any way affects matters of the construction of the Courts. The jury is as much a part of the Court as the Judge himself. It has been held that this section deals with irregular proceedings of competent Courts and not the constitution of the Court itself. It has been held that neither ignorance of the parties nor silence on their part can vest a Court with jurisdiction and powers it does not possess: King Emperor v. Sakharam [1902] 26 Bom. 50 Incidentally there is abundant authority in the English Courts for this juridical principle. This case last mentioned was a case of a Magistrate exercising a jurisdiction which he did not possess but in my view it is in point. A Court not properly constituted has no jurisdiction and, in my opinion, this Court which tried the accused before us in this case had not and the defect is not curable. In the case of Empress v. Jhubboo Mahton [1882] 8 Cal. 739 it was decided that if there was no objection then there could not be said to be prejudice.

But holding the view I do that this irregularity goes to the root of jurisdiction, I am of the opinion that that case does not bind us in any way and I prefer to follow the case of Bhola Nath Hazra and Others Vs. Emperor, on this point. In my opinion, therefore, the conviction must be set aside but the accused must be remanded to take his trial before a Court constituted in accordance with law.

Allanson, J. The order in the order-sheet regarding the constitution of the jury in the present case is as follows:

The five jurors named on the reverse side were then chosen by lot without objection on either side.

An affidavit has been sworn on behalf of the appellant that there were only five jurors present out of the persons summoned and that the Court included in the drawing of lots the names of those who were absent. It is argued that the procedure adopted by the learned Assistant Sessions Judge was a grave illegality which vitiates the whole trial.

Section 276, Criminal P.C., so far as it is material to the point under consideration, provides as follows:

The jurors shall be chosen by lot from the persons summoned to act as such, in such manner as the High, Court may from time to time by rule direct; provided that... secondly in case of a deficiency of persona summoned, the number of jurors required may, with the leave of the Courts be chosen from such other persons as may be present....

The rule made by the. High Court under this section directs that the names of all the persons summoned to attend, except such as have been excused from attendance by the Sessions Judge, shall be put into a box, and in open Court as many names as are required to make up the jury shall be drawn out one after another and

if any of the jurors whose names shall be so drawn shall not appear, or if any be objected to and the objection be allowed, then such further number shall be drawn as may be necessary to complete the number of jurors required for the case.

It seems clear, from the words in the section:

shall be chosen by lot from the persons summoned to attend.

and from the wording of the rule made. under the section, that it is not contemplated that there should be a preliminary roll call by the Judge to ascertain how many jurors among those summoned to attend are present. If such roll call is contemplated, it would be unnecessary to put into the box the names of jurors who are already known not to be present. It may, of course, happen that, even when only five jurors are actually present, the number required may be drawn out by lot before all the names are exhausted. It will then not be known if the jurors whose names still remain in the box are present or not.

The second proviso, in my opinion, is intended to meet a case in which after the drawing of lots the number of jurors is not obtained owing to a deficiency of persons summoned. If, for example, after the drawing of lots only four jurors are empanelled, the Court may choose one more person from among the persons present in Court. I am not prepared to accede to the argument that the words:

a deficiency of persons summoned.

are to be interpreted as implying that if the number of jurors present is equal to the number required, then the Court may make up the deficiency from persons present in Court; that is by adding one or more persons present in Court and then drawing lots among the five jurors and the additional person or persons. The words "by lot" do not appear in the proviso. The omission of these words in the proviso must have been intentional. Moreover, the word "deficiency" can only mean less than the number required, as the very words of the proviso show. If the words:

deficiency of persona summoned

are intended to cover a case when the exact number required for the jury are present, then I am unable to understand the meaning of the rest of the proviso. The duty of the Judge at the commencement of the trial is to draw by lot the names of all jurors summoned to attend, other than those excused; as soon as the required number is obtained the drawing of names ceases. If, as the result of absence or challenges, there is a deficiency of jurors after all the names have been drawn, he will then proceed to make up the required number under the second proviso or u/s 279, as the case may be.

It is argued that it is meaningless to draw lots among the persons summoned to attend, when only the required number are present. But, in my opinion, it is the procedure prescribed by law. If a roll call has first to be taken to ascertain the number of jurors present, then it is meaningless to include in the box from which the lots are drawn the names of persons known not to be present. The law does not say the lots are to be drawn only from among the jurors present, but it says "from the persons summoned to act as such," and the rule clearly provides that the names of all the jurors summoned to attend and not exempted are to be put into the box. In my opinion, the words of the section before the proviso deal with the choosing by lot, which must always take place. If after drawing lots a deficiency of jurors occurs, the second proviso comes in, and no further question of drawing by lot arises. If the contention of the learned vakil that there can be no drawing of lots when only five persons are present (this contention presupposes a preliminary roll call), then the following anomaly arises. Lots can be drawn if six jurors are present; if four are present, the Judge can make up the number in the manner prescribed in the second proviso. But, if five are present, he must adjourn the trial and fresh jurors must be summoned u/s 326. If this was intended, the law would have provided accordingly.

Certain authorities were cited at the bar. The earliest case is Empress v. Jhubboo Mahton [1882] 8 Cal. 739. There the Sessions Judge had himself selected the jurors instead of drawing them by lot; yet as it was not seriously contended that the accused was in any way prejudiced, it was held that the objection was one which ought not to be entertained for the purpose of interfering with the verdict, regard being had to the provisions of Section 283 (now Section 537). In Brojendra Lal Sirkar v. King-Emperor 7 C.W.N. 188, the facts were that the Sessions Judge, finding only three jurors present, summoned from the town nine more jurors. It was held by the Court that this was illegal, as jurors can only be summoned after being chosen by lot from the whole list of jurors, as provided in Section 326. Objection was taken at the time of the trial. Empress v. Jhubboo Mahton [1882] 8 Cal. 739 was not dissented from but only distinguished, on the ground that it did not appear from the report of that case that any objection was taken at the time of the trial. In The Government of Bengal Vs. Muchu Khan, , in which only three jurors appeared, the Judge called on four persons who happened to be in the precincts of the Court to make up the required number, which was seven. They were not chosen by lot. It was held that there was nothing illegal in this, as the words "the jurors shall be chosen by lot" in Section 276 cannot be applicable to the second proviso under which the Sessions Judge had acted. This authority is of importance in view of the contention of the learned vakil for the appellant in the present case that, if there are only five jurors present, the Court should call on one or more per sons in Court to serve and then draw lots to empanel a jury of five.

Bhola Nath Hazra and Others Vs. Emperor, is a recent case of the Calcutta High Court. There only five jurors appeared out of 12 summoned, and they were empanelled. It was held that there being only five jurors present and five being the necessary quorum for a jury, there were not enough jurors to permit of their being chosen by lot. The proper course, the learned Judges considered, was to make good the deficit by choosing some other persons who were present and adding their names to the five jurors, and from the whole body choosing the necessary five by lot. It does not appear from the report whether or not the Sessions Judge had followed the procedure prescribed by Section 276 and by the High Court rule made under that section, which is identical with the rule in this province; or whether he, empanelled the Jury after taking a roll call and dispensing with the drawing of lot. With all respect I do not agree with the view that the Judge''s duty was to select some persons present in Court and then draw lots. This procedure, in my opinion, is not warranted by the wording to the proviso. The learned Judges refused to treat the procedure adopted as a. mere irregularity, and pointed out that Empress v. Jhubboo Mahton [1882] 8 Cal. 739 was not followed in Brojendra Lal Sirkar v. King-Emperor 7 C.W.N. 188. Empress v. Jhubboo Mahton [1882] 8 Cal. 739 was, however, distinguished in Brojendra Lal Sirkar v. King-Emperor [1903] 7 C.W.N. 188 and was not dissented from.

In my opinion, the learned Assistant Sessions Judge has followed the procedure prescribed by law and the Court was properly constituted.

It was alternatively argued by the learned Government advocate that, even if there was an irregularity, it is cured by Section 537, as no objection was taken at the time and there has been no prejudice to the accused. Empress v. Jhubboo Mahton [1882] 8 Cal. 739 is a clear authority for this contention, and in that case there was a much graver irregularity than there was in the case before us, assuming that there has been an irregularity at all; for in the former case the Judge himself selected the Jurors out of those present instead of following the procedure prescribed, viz., choosing them by lot. In regard to the questions of misdirection and sentence I am in agreement with my learned brother Ross, J.

The order of the Court is that, the conviction be up-held but the sentence be altered. The sentence of fine is set aside. The sentence of imprisonment is reduced to two years rigorous imprisonment.