Decided on May 01,1901



- (1.) On the preliminary point in referred trial No. 61 and the connected criminal appeals. Bhashyam Aiyangar, J.
(2.) These are appeals in Sessions Case No 53 of 1900 before the Sessions Judge of Kurnool Division. The trial of the said case commenced on 23 August 1900 and closed on 15th October 1900 when judgment was reserved. The judgment was given on 24 October 1900, and the first eight accused in the case were convicted of murder and the ninth of abetment of murder. The trial before the Court of Session was with the aid of two assessors, viz., Gundu Rao and P. Seshiah Chetti, hereinafter referred to as the first and second assessor respectively. The first assessor was allowed by the Judge to go to Gooty to the death-bed of his mother at 2 P.M. on the afternoon of 5 September 1900, and he was also absent on the 6 and 7 September, but the trial proceeded during his absence. There was no trial of the case on Saturday the 8 and Sunday the 9 idem, and it was adjourned to Monday the 10th, on which day the first assessor returned and continued to attend the trial throughout except on 16th, 17th, 18 and 19 September, on each of which days he was allowed to absent himself till 1 P.M. to enable him to perform the daily obsequies of his deceased mother. It appears that all the depositions recorded in his absence were shown to and read by him. It is not contended that there was no sufficient Cause for his absence on the days above- mentioned, and it appears that no objection was raised on either side to the Judge permitting him to absent himself on these days. The Judge in his letter, dated 20 March 1901, further reports that when the first assessor returned "some doubts were expressed as to the legality of the (assessor s) return and felt by myself, but finally it was decided with the concurrence of both parties, that he might be allowed to return, as the validity of the trial could not be affected in either case, so long as one. assessor was present throughout the trial according to Section 285, Criminal Procedure Code." The Counsel who represented all the accused in the Sessions Court also appeared in this Court as Counsel for the 2nd accused, the appellant in Appeal No. 874 of 1900, and says that he did not waive his objection though he did not. press it or make any protest after the Judge ruled that the trial could not be affected by the return of the first assessor. The statement of the Counsel made in this Court that he did not waive the objection, must be accepted, though the Judge might have misunderstood Counsel as concurring in the view of the Judge. It is very much to be regretted that any doubt should have been felt on a point which is so plain and that the first assessor should have been allowed to resume his seat as an assessor instead of the trial proceeding, as it undoubtedly could, with the aid of the remaining assessor alone under Section 285, Clause (1). The Public Prosecutor, who also appeared in the Sessions Court, now admits that the first assessor ought not to have been allowed to resume his seat as assessor. At the conclusion of the trial the Sessions Judge invited the opinion of each assessor and recorded it, viz., that all the accused were guilty, and the Judge concurring in such opinion, convicted the accused. Upon the above facts a preliminary ground has been raised and argued in the above appeals, that the Judge having acted contrary to law in allowing the first assessor to resume his seat as assessor and in inviting and taking into consideration his opinion in deciding the case, the trial ought to be set aside and the conviction quashed,
(3.) In my opinion, the finding and sentence appealed against is one passed by a court of competent jurisdiction within the meaning of Section 537 of the Criminal Procedure Code, and that the defect in the trial does not affect its validity and is one that can be cured under that section, if the irregularity "has not in fact occasioned a failure of justice.";

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