- (1.)THE applicants Bajrang and 12 others were committed by the First Class Magistrate, Wardha, to the Court of Session, Bajrang in respect of offences punishable under Section 148 and Section 307 read with Section 34, Indian Penal Code, and the other applicants in respect of offences under Section 148 and Section 307 read with Sections 34 and 149 ibid. The Additional Sessions Judge, Wardha, by his order dated 9th May 1949, held that the trial was to proceed with the aid of assessors in virtue of Rule 224 of the Rules and Orders (Criminal) and rejected the applicants' application for a jury trial, They have now come up in revision to this Court, and their main contention is that the first proviso to the aforesaid rule was ultra vires of the Provincial Government and could not override the provisions of Section 269 (3), Criminal P. C.
(2.)SECTION 269 runs as follows: (1) The Provincial Government may, by order in the official Gazette, direct that the trial of all offences, or of any particular class of offences, before any Court of Session, shall be by jury in any district, and may, revoke or alter such order. (2) The Provincial Government, by like order, may also declare that, in the case of any district in which the trial of any offence is to be by jury, the trial of such offences shall, if the Judge on application made to him or of his own motion so directs, be by jurors summoned from a special jury list, and may revoke or alter such order. (3) When the accused is charged at the same trial with several offences of which some are and some are not triable by jury, he shall be tried by jury for such of those offences as are triable by jury, and by the Court of Session, with the aid of the jurors as assessors, for such of them as are not triable by jury.
(3.)RULE 224 of the Rules and Orders (Criminal) is based on notification No. 669-728-XIX, dated 27th April 1942, and the relevant part of it is as follows: In exercise of the powers conferred by Sub-section (1) of Section 269 Criminal P. C. 1898 V of 1898, and in supersession of all the previous notifications in this behalf, the Provincial Government is pleased to direct that, with effect from the 1st May 1942, the trial of all offences punishable with transportation or with imprisonment extending to a term of tan years or upwards but not punishable with death, including abetment of, and attempts to commit, any such offences alleged to have been committed within the Nagpur, Wardha, Jub-bulpore, Hosbangabad excepting Narsinghpur Sub division, Nimar, Amraoti, Aliola, Yeotmal and Buldaua revenue districts, when held before the Courts of Session shall be by jury: Provided that any of such offences shall not be triable by jury if, at the same trial, the accused is also charge;] with another offen arising out of the same transaction which is triable by a Court of Session with the aid of assessors: