MODI, J. - (1.) THIS is an appeal by the accused Chhagan Singh who has been convicted of offences under sec. 307 of the Indian Penal Code and sec. 19 of the Arms Act. He has been sentenced to five years' rigorous imprisonment and a fine of Rs. 100/- and in default to undergo further rigorous imprisonment for the three months under sec. 307 I. P. C. , and to 18 months' rigorous imprisonment under sec. 19 of the Arms Act.
(2.) THE case for the prosecution is briefly as follows : On 27. 2. 52 Malu Singh, Head-constable attached to the police station Ratangarh, came to know that the three dacoits Mohania, Dhhane Singh and Chhagan Singh were in the village Raipuria and were expected to stay there during the night. It is said these persons were wanted by the police in connection with several crimes, Malusingh went on the same night to the Superintendent Police, Churu, Shri Tarachand (P. W. 1) who immediately on being informed organised a raid party to go to Raipuria. THE police party led by the Superintendent of Police left for Raipuria in two Government cars, and kept guard on the village during the night but they found in the morning that the dacoits had left Raipuria and were staying in the sand-hills in the neighbourhood of the village. THE police party tracked them for about 20 to 25 years and eventually saw them from a distance of about 250 yards in the jungle of Ratangarh. THE accused and his companions seeing that they were being pursued by the Police, jumped down from their camels, took cover under the boundary wall of a field and prepared themselves for an attack on the police. THE police party also took up their positions on the other side of the filed. THE accused's party started firing and the police also returned fire. It is said that Mohania fired three shots, and thereafter ran away having handed over his rifle to Dhhanesingh, that Dhannesingh also fired two shots and thereafter he passed on the rifle to Chhagansingh and was running away. It is further said that Chhagansingh had just fired one shot when the police party managed to advance quite close to him, and then seeing no chance of escape, Chhagansingh surrendered himself to the police. As Dhhanesingh was seen running away, one of the police party chased Dhannesingh, hit him with the butt-end of a gun and felled him down. Dhannesingh was immediately arrested. THE police recovered one rifle and a bandolier containing 32 live cartridges from the person of Chhagansingh. THEy also recovered six blank cartridges which were lying on the spot where the dacoits had taken up their positions. THE police also took in their custody the two camels on which the accused and his companions were riding. THE Sub Inspector, Churu, Shri Nathuram P. W. 3, commenced the usual investigation, and in due course challaned Dhannesingh and Chhagansingh in the court of the Sub-Divisional Magistrate, Ratangarh. THE case was subsequently transferred to the Extra Magistrate, Churu who committed the accused for trial to the Additional Sessions Judge, Churu. It may be pointed out here that the accused Mohania is still absconding. THE remaining two accused, Dhannesingh and Chhagansingh were convicted by the learned Additional Sessions Judge, Churu and Chhagansingh has filed this appeal against his conviction. A jail appeal filed by Dhannesingh was dismissed by a bench of this Court. The accused Chhagansingh pleaded not guilty, and his defence was that he was going to village Tidda, and the police arrested him on the way. Chhagansingh denied having fired at all, and also denied that the rifle along with the cartridges was recovered from him. Learned counsel for the accused, before dealing with the case on the merits, relied on certain irregularities in the trial and urged that the whole trial was vitiated on account of those irregularities. The first irregularity pointed out by learned counsel for the appellant was that the learned committing magistrate had failed to ask the accused to furnish a list of such witnesses as the accused wished to be summoned to give evidence at the trial in the court of session under sec. 211 Cr. P. C. The argument of the learned counsel was that a non-compliance with the provisions of sec. 211 Cr. P. C. vitiated the trial. It may be pointed out, however, that on 31st May, 1952, when the case came to the learned Sessions Judge's court for trial, the learned Judge directed that witnesses both for the prosecution and defence be summoned. The case was then fixed for 16th June, 1952, and the evidence of the witnesses, who were present was recorded. It deserves to be noticed that on that date no application was made on behalf of the accused that he wanted to have any further witnesses summoned in his defence or that even otherwise he wishes to produce any witnesses himself beyond those who had already been examined. It is true that where the accused fails to furnish a list of witnesses on being so asked under sec. 211 Cr. P. C. , he is not entitled as of right to ask the court of session to summon witnesses at the trial, but that court has doubtless a discretion in the matter and the learned Sessions Judge in a case like the present where the committing Magistrate had failed to perform his duty, may well have exercised his discretion in favour of the accused and allowed him fresh opportunity to have his witnesses summoned if the learned Judge had been moved to do so. But nothing of the kind was done on behalf of the accused and I take it that the accused did not really want to produce any further evidence at the trial. Under these circumstances, I am of opinion that there is no substance in the objection raised by learned counsel for the appellant. It seems to me to be well established that a noncompliance with the provisions of sec. 211 Cr. P. C. by itself is not sufficient on vitiate the trial unless a failure of justice has occurred. See Ramsingh vs. The State (1) (1952 RLW 269.) in this connection. I am satisfied that a breach of the provisions of sec. 211 Cr. P. C. has not really caused any prejudice or failure of justice in this case and I, therefore, over-rule this objection. Another irregularity which was urged with considerable force by learned counsel for the accused was that the learned Sessions Judge had not complied with the provisions of sec. 326 Cr. P. C. , because he had not summoned double the number of assessors required for the trial under that section. It was also urged that the assessors had not been chosen for the simple reason that out of the four assessors summoned for the trial only three attended and the trial had taken place with the aid of these three assessors. Sec. 284 Cr. P. C. provides that when the trial is to be held with the aid of assessors, not less than three, and if practicable, four shall be chosen from persons summoned to act as such. It is admitted that there was no deficiency as regards the minimum number of the assessors required as the trial. So far as the choosing of the assessors is concerned, it appears that although four assessors had been summoned by the learned Sessions Judge for the purposes of this trial, only three of them were served and attended upon the summons. That being so, it cannot be gainsaid that if by "chosen", the intention of the legislature is that there must be a choice out of a larger number, this condition was not fulfilled. Sec. 284, however, dose not provide for any particular method of selection and, therefore, it cannot be said that the assessors must have been chosen by lot or by any other similar method. Besides, there is authority for the proposition that the word "chosen" does not necessarily imply that there ought to be a selection out of a larger number. See Ram Babu vs. Emperor (2) (AIR 1938 Pat. , 60. ). There is, therefore, no force in this part of the objection. So far as the remaining part of the objection under this head is concerned, it must be borne in mind that sec. 326 Cr. P. C. envisages the summoning of jurors or assessors generally for all trials in a particular session and not with reference to any particular trial, and provides that the minimum number should not be less than double the number required in any particular trial to be held during the session. It is not necessary however, for a Sessions Judge invariably to summon jurors or assessors altogether for a whole session, and he may summon them for the purposes of any individual trial also. Sec. 327 Cr. P. C. gives him authority to do so. But, even so, it is contended that the minimum of double the number of assessors required for a particular trial must be summoned. There is two-fold answer to this contention. First, that sec. 326 lays down a rule which should "ordinarily" be followed and in that sense it does not appear to be a mandatory requirement. In the second place, a transgression of this rule by itself dose not amount to an illegality sufficient to vitiate a trial unless a failure of justice appears or is shown to have occurred to the accused by a breach of this rule. Reference may be made in this connection to Emperor vs. Ermanali (3) (AIR 1950 Cal. , 212.) and Lala vs. Emperor (4) (AIR 1933 All. , 941. ). In these cases which related to the summoning of juries under sec. 326 Cr. P. C, it was held that although the provisions of sec. 326 were not strictly complied with, that was a mere irregularity which did not vitiate the trial, and was curable under the provisions of sec. 537 Cr. P. C. The principle of these decisions applies, if only, with greater force to trials with the aid of assessors, and consequently I hold that the contention of learned counsel for the accused in this respect is without any substance. Yet another objection has been strenuously urged on behalf of the accused that in the present case, after the learned Sessions Judge summed up the evidence both for the prosecution and the defence, and asked the assessors to state their opinion on the case, he committed a serious breach of the provisions of sec. 309 of the Code of Criminal Procedure, because the learned Judge did not require the assessors to state their opinions distinctly on each separate charge for which the accused had been tried. Learned counsel stated that all that the learned Judge did in this case was that he put the following question. 'kgknr xokgku blrxklk vkids :c: gqbz vksj 'kgknr lqkbz Hkh vkids :c: gqbza vki crykbz;s fd eqyfteksa us dksbz tqez fd;k gs ;k ugha?** to each one of the assessors and theyt individually replied esjh jk; esa eqyfte nks"kh gsa The argument of the learned counsel is, that the accused were being tried for two offences, one under sec. 307 IPC and another under sec. 19 of the Arms Act, that the manner in which the learned Sessions Judge invited the opinion of each of the assessors and recorded their opinions was not at all a sufficient or a pro-proper compliance with the provisions of sec. 309 Cr. PC and that the breach was an illegality which vitiated the trial and, therefore, the conviction and sentences passed on the accused must be quashed. Learned counsel for the appellant has relied on Lal Behari Singh vs. Emperor (5) (AIR 1934 Oudh, 354,) in support of his contention. In that case the appellants were convicted of offences under secs. 396, 137 and 333 IPC and the although the assessors stated that the accused were guilty of offences under certain sections of the Code, the opinion of the assessors in respect of the charge under sec. 396 IPC was not recorded. One of the assessors gave an opinion that the accused were guilty under sec. 302 read with sec. 149 IPC although there was no charge against the accused under sec. 302 read with sec. 149. In these circumstances, it was held that the learned Sessions Judge was bound to record the opinion of each assessors in respect of all the charges for which the accused were being tried, and the learned Judge's failure to do so meant that he virtually tried the case without the aid of assessors and a trial was void in toto. Learned Government Advocate has, on the other hand, referred me to Fattan vs. Emperor (6) (AIR 1945 Alld. 87.), and has urged that as the learned trial Judge is not bound to conform to the opinions of the assessors the irregularity if any, was not at all a serious one and that it was curable under the provisions of sec. 537 Cr. P. C. In the Allahabad case what happened was that the learned Sessions Judge had asked the opinion of the assessors on all the charges for which the accused were being tried, but the learned Judge failed to invite the opinion of the assessors on a further charge under which the accused were convicted by the learned Judge. It was held under these circumstances, that the failure of the Judge to put questions to the assessors and to elicit their opinion on the further charge for which the accused had been convicted was a mere irregularity, and was not sufficient to vitiate their conviction. Now, I have no hesitation in stating that it would have been far more desirable if the learned Sessions Judge had required each of the assessors to state distinctly their opinion on each one of the charges viz. under sec. 307 IPC and under sec. 19 of the Arms Act, for which the accused were being tried. The learned Judge seems to have recorded the whole proceeding in a rather superficial manner, and one cannot be sure whether the assessors had clearly visualised the position that they were being required to state their opinions on both the charges with which the accused had been charged. The material point for determination, however, is whether the failure of the Judge in this respect is mere irregularity or an illegality sufficient to vitiate the trial, and cannot be cured by the provisions of sec. 537 Cr. P. C. As the question is not free from doubt or difficulty and is of considerable importance and may arise in other cases, I consider it proper that the case may be laid before his Lordship the Chief Justice for being placed before a larger Bench for an authoritative pronouncement of this point. The point for reference may be stated as follows "where a trial Judge fails to require each of the assessors to state his opinion distinctly on each of the charges for which the accused has been tried, whether such failure vitiates the trial, or is curable under the provisions of sec. 537 Cr. P. C. ?". ;