Kewal Saran Singh vs Kamla Pati Lal and Others

Dhavle, J.—This is a reference made by the Additional Sessions Judge of Patna recommending that an order of the Sub, Divisional Magistrate of Dinapore, dropping u/s 139(2) certain proceedings under Chap. 10, Criminal P.C., be set aside, and that the Magistrate be directed to appoint a fresh jury and dispose of the Case according to law. It appears that the constitution of the jury gave a certain amount of trouble in the case. The gentlemen nominated at first to act as jurors declined, some of them, to act in that capacity. The appointment of the jury only became complete on 16th January 1940; but more than six weeks before this Babu Deonandan Sahay one of the jurors had already submitted his report on 28th November 1939.

The jurors in a body inspected the locality on 30th January 1940 when four of the jurors submitted a concurrent report and Babu Deonandan Sahay repeated his report of 28th November 1939. It is clear that having expressed his opinion before 16th January Babu Deonandan Sahay was not a fit person to be on the jury and the constitution of the jury as completed on 16th January 1940 was essentially defective. In these circumstances the report of the majority of the jury itself becomes illegal and one that cannot be acted upon. Mr. Raj Kiahore has in this connexion drawn attention to Dasya v. Nibaran Chandra AIR 1920 Cal 161 where the constitution of the jury was found defective and it was held that the Magistrate should not have acted on the report of the jury and should have appointed a fresh jury and allowed the proceedings to go on with a fresh jury.

The learned advocate for the opposite party before me has contended that Section 139, Criminal P.C., does not give the Court any power to appoint a fresh jury and that the analogy of Section 282 cannot be properly invoked in connexion with a jury under Chap. 10. I am unable to accept this contention. It is obvious that Section 139 contemplates a legal verdict by a duly constituted'' jury and the Case in Dasya v. Nibaran Chandra AIR 1920 Cal 161 is'' not the only decision in which it was held that it is open to the Court in its inherent jurisdiction to deal with a defect of the kind that we find in the present case. As a matter of fact it was not in respect of the impropriety of having Babu Deonandan Sahay on the jury at all that the Magistrate came to the conclusion that the verdict of the majority of the jurors was illegal.

As pointed out by the learned Additional Sessions Judge he seems to have overlooked Babu Deonandan Sahay''s report of 28th November probably because he had failed to note it in the order sheet; but even apart from this there were two matters in which the jury had exceeded their functions, because the Magistrate had not clearly drawn the attention of the jurors to what they were supposed to enquire into. These two matters are, the question of public right which u/s 139-A(3) the jury were not competent to look into in the circumstances of the present case and the rule which had already been made absolute against certain parties that had not appeared and shown cause or applied for the appointment of a jury.

Even these illegalities would clearly affect the position. The learned advocate for the opposite party has cited Jiblal Teli v. Gena Sahu AIR 1928 Pat 229 which followed Kishori Lal v. Emperor 13 CWN 367 and contended that this party should now be at liberty, instead of having to face a fresh jury, to adopt the other alternative mentioned in Section 135-B; but the cases referred to are cases u/s 141 of the Code and have nothing to do with a defectively constituted jury or with a jury that exceeded its functions in material respects. Section 141 has no application to the facts of the case at all.

The result is that the recommendation of the learned Additional Sessions Judge must be accepted, the order of the Sub-Divisional Magistrate set aside and the direction made that the Magistrate do appoint a fresh jury and dispose of the case according to law.