Rankin, J - (1.)There are two matters before us. One is a Reference by the learned 5 Additional Sessions Judge of the 24-Perganahs. It appears that the learned Judge was trying a case in which all the seven accused were charged under Section 147 and also under Section 302 read with Section 149 of the Indian Penal Code but, in addition, three of them were also charged under Secs.326; 325 and 323.
(2.)The case had been committed for trial. I may say at once that it does not appear to me that there was any illegality about the order of commitment. The committing Magistrate in his order has quite properly dealt with the question whether the accused should be committed for trial on a charge under Section 302 read with Section 149. In these circumstances his order of committal was perfectly good.
(3.)The case began on the 4 of August and it was tried on the 4th, 5th, 6th, 7 and the 9th of August. Then, on the 10 a juror fell ill. On the 11 he was absent and the case was adjourned to the 16th. As a matter of fact, on the 16 this particular juror was present, but another juror was ill and sent a medical certificate. Apparently by the medical certificate, if carefully scrutinized, it would have been discovered that another four days time might have sufficed to get that juror's attendance. However, the learned Judge, after discussing the question, whether to fix the case for the 13 of September or a subsequent day, finally made up his mind to discharge the jury and he discharged the jury. Having discharged the jury the next step that took place before him was that the prosecution appeared before him and withdrew the charges under Section 302 read with Section 149 against all the accused. Those charges having been got rid of, the learned Judge has referred the matter to this Court for an order that the remaining charges, that is to say, of rioting and hurt against the accused should be sent to be tried before a Magistrate; in other words, that the order of committal to the Sessions Court should be set aside.