Decided on April 13,1955

STATE Respondents


- (1.)This is a reference made by the learned Sessions Judge of Kurnool under the following circumstances. Three accused were charged before him under section 302, I.P.C. The trial was commenced on and March, 1955 and the following three persons were empanelled as assessors, (1) Sri Kristappa of Kappatralla village in Pattikonda taluk ; (2) Sri K. Narasinga Rao of Kurnool Town and (3) Sri. Pandugala Atchanna of Kurnool Town. After four of the 21 witnesses cited for the prosecution were examined and while Santemma who was one of the witnesses in the case was in the box, the assessors told the Court that this witness happened to contact them during the lunch interval and told them something about the case outside the Court which was quite contrary to what she had deposed in the court. Thereafter, the Public Prosecutor filed a memo in Court which runs as follows :
"As the assessors are acting on outside information, it is not safe and just to keep them as assessors during the trial of this case. It is prayed that they may be discharged and fresh assessors may be taken and trial commenced afresh."

(2.)The counsel for the second and the third accused made an endorsement to the effect that they had no objection to the course suggested by the Public Prosecutor, but the learned Sessions Judge felt that he had no power to discharge the assessors in the circumstances aforesaid and therefore referred the matter to this Court. Section 285 Criminal Procedure Code enables the Sessions Court to discharge the assessors and it reads : 235 (1) : If in the course of a trial with the aid of assessors at any time before the finding, any assessor is, from any sufficient cause prevented from attending throughout the trial, or absent himself, and it is not practicable to enforce his attendance, the trial shall proceed with the aid of the other assessor or assessors. 285(2) : If all the assessors are prevent from attending, or absent themselves, the proceedings shall be stayed and a new trial shall be held with the and of fresh assessors."
(3.)It is clear from the aforesaid provisions that sub-section (1) enables the Court to proceed dispensing with one of the assessors only if the said assessor is not able to attend throughout the trial or absents himself and it is not practicable to enforce his attendance and sub-section (2) enables the Court to empanel fresh assessors only if they are prevented from attending or absent themselves. In the present case, none of the conditions laid down in either of the two sub-sections of that section are complied with. The assessors have disqualified themselves from functioning as such, as they were acting on outside information. There is no specific provision enabling either the Sessions Judge or the High Court to discharge the assessors in the circumstances of the case. In my view, this is one of the classes of cases which attracts the inherent power of the High Court under section 561-A of the Criminal Procedure Code which says :
"Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
I accept the reference and discharge the assessors and direct the learned Sessions Judge, Kurnool to proceed with a de novo trial after empanelling a new body of assessors.

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