RAS BEHARI LAL Vs. EMPEROR

JUDGEMENT

(1.) This is appeal by special leave. The appellants were tried by the Sessions Judge of Patna, sitting with a jury of seven. They were found guilty by a majority verdict of six to one on charges of murder and rioting. Appellants Nos. 1-7 were sentenced to death and No. 8 to transportation for life. They appealed to the High Court, but their appeal was dismissed. The sentences on appellants Nos. 2, 3, 6 and 7 were subsequently commuted by the Local Government to transportation for life. On their application for leave to appeal to His Majesty in Council it was asserted that one of the seven jourors did not understand English, the language in which some of the evidence appears to have been given, and in which the addresses of counsel were made and the charge of the Sessions Judge was delivered. This contention had been put forward on their behalf in their appeal to the High Court. It was originally supported by an affidavit upon which the learned Judges of that Court properly refused to rely. A second affidavit to the same effect of a more reliable character was tendered on the last day of the hearing, but was rejected as too late, and the appeal was (as already stated) dismissed.

(2.) Under these circumstances an inquiry was by order of His Majesty in Council directed to be held by the High Court as to the truth of the allegations so made. The High Court reported that the juror in question did not know sufficient English to follow the address of the lawyers and the Judge's charge or the English evidence. It was after consideration of this report and upon this ground that special leave to appeal was granted. On the appeal coming on for hearing before the Board counsel for the Crown has not impugned the correctness of the report and has admitted that on this finding the convictions cannot be maintained. In their Lordships' opinion, this is necessarily the correct view. They think that the effect of the in- competence of a juror is to deny to the accused an essential part of the protection accorded to him by law and that the result of the trial in the present case was a clear miscarriage of justice. They have no doubt that in these circumstances the conviction and sentence should not be allowed to stand. They think it was most unfortunate that this matter was not fully inquired into by the High Court when the appeal was before it. Had the learned Judges been satisfied then of the truth of the facts now established, it would have been open to them under the provisions of S. 423, Criminal P.C., if they so thought fit, to have reversed the findings and sentences of the Sessions Judge and ordered the appellants to be retried, a course which, in their Lordships' opinion, would have fully met the ends of justice.

(3.) Since the hearing of the case their Lordships have had their attention directed to the case of R. V/s. Thomas a decision of the Court of Criminal Appeal given on the very date upon which this present case was before their Lordships. Owing to the remarkable fact that there is no official shorthand note of judgments delivered by the Court of Criminal Appeal their Lordships might have been in a difficulty if they had not had the advantage of seeing an advance copy of the report to be published in the Criminal Appeal reports. In that case the appellant had been convicted at the Merioneth Quarter Sessions of sheepstealing. He appealed on the ground amongst others, that two of the jurors had not sufficient knowledge of the English language to enable them to follow the proceedings. His counsel sought to use affidavits by the jurors in question to that effect. The Court refused to receive the evidence and dismissed the appeal against the conviction, although on other grounds they reduced the sentence. It would appear from the report that the judgment was based in part upon the well established ground that for the purpose of setting aside the verdict evidence is not admissible by jurors to prove what discussions took place in the jury box or in the jury room. It was further based upon the proposition that when a verdict is delivered in the sight and hearing of all the jury without protest their assent is conclusively inferred. The suggestion was made arguendo, but does not seem to have been decided that if a juror was disqualified by law the objection could not be entertained after verdict. If their Lordships agreed with all the grounds of this decision they would have had to consider whether, notwithstanding the lack of opposition by the prosecution they would have interfered with the decision of the High Court at Patna. But with the greatest respect for the learned members of the Court of Criminal Appeal they are unable to accept the reasons given for this decision. The question whether a juror is competent for physical or other reasons to understand the proceedings is not a question which invades the privacy of the discussions in the jury box or in the retiring room. It does not seek to inquire into the reasons for a verdict. If the alleged defect of the juror could be proved at all aliunde there seems to be no reason why the evidence of the juror himself should not be available either for or against the allegation. It would seem remarkable that if evidence of neighbours could be given that a juror did not understand English, it should not be open to the prosecution to produce the strongest evidence, possible by calling the juror himself to show that he fully understood the proceedings. Similarly their Lordships are unable to accept the view that any presumption of assent by all the jurors to a verdict given in their presence is decisive of or indeed relevant to the question. The problem is whether the assent so given for inferred is of a competent juror, i.e., in such a case as the present not so incapaciated from understanding the proceedings as to be unable to give a true verdict according to the evidence. The objection is not that he did not assent to the verdict, but that he so assented without being qualified to assent.