Sariman Ahir vs Emperor

John Bucknill, J.—This was an application in criminal revisional jurisdiction made by four applicants who were convicted of offences in connection with a dacoity by the Assistant Sessions Judge of Shahabad. They were tried before a Jury who by a majority found them guilty. The first two applicants were sentenced to four years'' rigorous imprisonment and the third and fourth applicants were sentenced to three years'' rigorous imprisonment.

The only point upon which this application is made to this Court to interfere with the conviction and sentences is that there has been in the procedure of this case a very gross irregularity which is of such a character that the applicants ought to be entitled to a re-trial. The circumstances surrounding this irregular procedure were certainly very unusual. It would appear that after the case had been concluded the Judge summed up the case to the Jury and after having delivered his charge it was contemplated that the Jury should retire to consider their verdict. The foreman of the Jury, however, became indisposed and began to vomit and according to the learned Assistant Sessions Judge''s order-sheet, he (the Assistant Sessions Judge) observed that the foreman was unable to take part in the discussion which was apparently going on between the members of the Jury. It was then about 1 p. M. in the height of the hot weather in May and the Judge seems then to have stated to the Jury that they could rest for two or three hours and come back at 4-30 p. M. There seems no doubt that the members of the Jury then dispersed, left the precincts of the Court and went home. At 4-30 p M. they returned and after having retired for about twenty minutes gave the verdict to which I have already drawn attention. It would seem that the Pleader who appeared for the defence pointed out at that time to the Assistant Sessions Judge that the proceeding had been in fact irregular and that three hours had elapsed between the time when the Judge had concluded his charge to the Jury and the time when the Jury had returned its verdict and that the bulk of that period had been spent by the Jury away from the precincts of the Court. The Judge, however, in his order-sheet whilst drawing attention to the Pleader''s objection, states that no definite information had been given to him which would show that any member of the Jury had an opportunity of speaking or holding communication with anybody at all and in consequence he thought that there was no material substance in the objection. The question was raised in appeal before the Sessions Judge and the Sessions Judge whilst recognizing that there had been an irregularity came to the conclusion that ''it was an irregularity which did not in any way vitiate the trial. He thought that although the provisions of Section 300 of Cr. P.C. had been clearly disregarded, it was necessary for the applicants to show that, as a matter of fact, some communication had been made to some member of the Jury during the Jury''s absence from the Court after the Judge had concluded his charge. He also indicates that to his mind the circumstances under which the foreman of the Jury was indisposed were so peculiar that the Assistant Sessions Judge had practically no alternative except to do what he did do. Now, there can be no doubt that Section 300 does not contemplate that the Jury after the Judge has summed up a case to the Jury will leave the precincts of the Court or be at large. The section clearly contemplates that after the Judge had delivered his charge the Jury must then retire to the Jury room and then and there consider its verdict; and emphasis is placed upon this construction of the section by the second portion of the section itself, which states that except with the leave of the Court no person other than a juror, should speak or hold any communication with any member of such a Jury. This means in particular that the Jury shall have no chance of communicating with any outside person while they are, in fact, considering their verdict. Now the learned Counsel for the applicants had aptly pointed out that there seems every probability that during the two or three hours when these jurors had dispersed to their homes they did in fact enter into some sort of communication with the outside public. I am bound to say that I have come to the same conclusion. I think that it is hardly possible to imagine that during these hours some if not all of the Jury did not speak to some person or persons about the case. It is true we do not know in fact that they or any of the Jury did so speak to any one but I think that one may properly infer that they did so. What, if any effect such conversation may have had it is, of course, quite impossible to contemplate. But I do not think that, in the circumstances of this case, this irregularity of procedure can be passed over. I think it is important to impress upon those who have to try cases with a Jury that after a charge is made to the Jury, the Jury should not be allowed to disperse but should strictly follow the procedure laid down in the Code and there and then retire and consider in private their verdict. The obvious disadvantage which might appertain to any other form of procedure such as to allow the Jury to disperse after the charge has been concluded seems to open the door to all kinds of possible abuses. At any rate it gives a chance of improper communication being made to the Jury by persons or by the Jury to persons interested in the subject-matter of the trial and when one is really in doubt as to what has taken place when there has been after a charge dispersal of the Jury. I think that it may not be altogether safe to conclude that that irregular procedure had had no effect upon the Jury''s verdict.

In this case, therefore, I have with some reluctance come to the conclusion that the convictions must be set aside and that the applicants must be tried de, novo.

Ross, J.

I agree.