# MAGGA AND ANOTHER v. THE STATE OF RAJASTHAN

- **Citation:** [1953] 1 S.C.R. 973
- **Court:** Supreme Court of India
- **Decided:** 1952-10-27
- **Case number:** Criminal Ap. peal No. 103of1952
- **Bench:** Mehr Chand Mahajan, S. R. Das
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/magga-and-another-v-the-state-of-rajasthan-234
- **Pages:** 14

## Headnote

Criminal Procedure Code (V of 1898), ss. 284, 285, 539-Assessoi·s-Trial with three assessors-Absence of one assessor during
trial-Substitution of new person-Legality of trial-Re-appearance of absent assessor-Continuing trial with four assessorsVa,lidity of trial.
Section 285 of the Criminal Procedure Code permits a trial
commenced with the aid of three assessors to be continued and
completed with the aid of less than three if during the course of
the trial any assessor is prevented by sufficient cause from attending. It does not, however, authorise the substitution of an
assessor for an absent one nor an addition to the number of assessors during the course of the trial.
A, B and 0 were summoned to sit as assessors for a murder
trial and as C did not appear, D who was i11 tl1e list of assessors
and who was present in court though not su111moned, was asked
to sit as an assessor, and the trial commenced \\'ith three assessors A, B and D.
A absented himself during the course of the
trial and the judge asked E to sit in place of A and proceeded with
the trial for some days with B, D and E. Later on A appeared
and the trial continued till the end with the four assessors A, B,
D and E:
Held, (i) that the mere fact that D who had not been summoned was allowed to sit as an assessor when the trial commenced did not vitiate the trial as it was a mere irregularity and did
not cause any failure of justice;
King Emperor v. Ramsidh Rai (39 Cr. L.J. 725) approved.
Balak Singh v. Emperor (A.LR. 1918 Pat. 420) explained.
(ii) though sub-sectiou (1) of s. 285 imposes a duty on \be
judge to find ont whether there was sufficient cause for the
absence of an assessor and to consider \.Vbether it is not possible
to enforce his attendance, it should be presumed that he has done
so when be proceeds with the trial in his absence and a mere
omission to record reasons for proceeding with the trial without
the absent assessor would not by itself vitiate the trial ;
{iii) a sessions judge, however, has no jurisdiction to substitute another person for any assessor \Vho absents himself rlnring
the trial or to reinstate the absent assessor \Vhen be re-appears
and continue the trial with four asses3ors \vhen the trial commenced with three assessors, an(\ the trial in question was there~
lore illegal.
n~
•
1953
Feb.16.
•
1053
nnd Another
v.
'J'he Sfa.fe of
Rajnsthnn.
974
S-CPRE:\IE COURT REPORTS
[1053]
King Emperor v. Tirwnal Reddi (I.L.R. 24 Mad. 523) distin·
guished.

## Text

'
,; .
S.C.R.
SUPREME COURT REPORTS
973
.
MAGGA AND ANOTHER
v.
THE STATE OF RAJASTHAN
[MEHR CHAND MAHAJAN and S. R. DAS JJ.]
Criminal Procedure Code (V of 1898), ss. 284, 285, 539-Assessoi·s-Trial with three assessors-Absence of one assessor during
trial-Substitution of new person-Legality of trial-Re-appearance of absent assessor-Continuing trial with four assessorsVa,lidity of trial.
Section 285 of the Criminal Procedure Code permits a trial
commenced with the aid of three assessors to be continued and
completed with the aid of less than three if during the course of
the trial any assessor is prevented by sufficient cause from attending. It does not, however, authorise the substitution of an
assessor for an absent one nor an addition to the number of assessors during the course of the trial.
A, B and 0 were summoned to sit as assessors for a murder
trial and as C did not appear, D who was i11 tl1e list of assessors
and who was present in court though not su111moned, was asked
to sit as an assessor, and the trial commenced \\'ith three assessors A, B and D.
A absented himself during the course of the
trial and the judge asked E to sit in place of A and proceeded with
the trial for some days with B, D and E. Later on A appeared
and the trial continued till the end with the four assessors A, B,
D and E:
Held, (i) that the mere fact that D who had not been summoned was allowed to sit as an assessor when the trial commenced did not vitiate the trial as it was a mere irregularity and did
not cause any failure of justice;
King Emperor v. Ramsidh Rai (39 Cr. L.J. 725) approved.
Balak Singh v. Emperor (A.LR. 1918 Pat. 420) explained.
(ii) though sub-sectiou (1) of s. 285 imposes a duty on \be
judge to find ont whether there was sufficient cause for the
absence of an assessor and to consider \.Vbether it is not possible
to enforce his attendance, it should be presumed that he has done
so when be proceeds with the trial in his absence and a mere
omission to record reasons for proceeding with the trial without
the absent assessor would not by itself vitiate the trial ;
{iii) a sessions judge, however, has no jurisdiction to substitute another person for any assessor \Vho absents himself rlnring
the trial or to reinstate the absent assessor \Vhen be re-appears
and continue the trial with four asses3ors \vhen the trial commenced with three assessors, an(\ the trial in question was there~
lore illegal.
n~
•
1953
Feb.16.
•
1053
nnd Another
v.
'J'he Sfa.fe of
Rajnsthnn.
974
S-CPRE:\IE COURT REPORTS
[1053]
King Emperor v. Tirwnal Reddi (I.L.R. 24 Mad. 523) distin·
guished.
CRIMINAL APPELLATE JURISDICTION: Criminal Ap.
peal No. 103of1952. Appeal under article 134(l)(c)
of the Constitution of India from the Judgment and
Order dated the 27th October, 1952, of the High Court
of Judicature for the State of Rajasthan at Jodhpur
(Wanchoo C.J. and Bapna .T.) in D.B. Criminal Murder
Reference No. 2 of .1952, arising out of the .Judgment
and Order dated the lst July, 1952, of the Court of the
Sessions Judge, Pali, in Criminal Original Case No. 2
of 1951.
H. J. Urnrigar for the appellants.
Porus A. 111 ehta for the respondent.
1953. February 16.
The Judgment of the Court
was delivered by
MAHAJAN J.-This is an appeal under article 1:34(1)
( c) of the Constitution of India, by Magga and Bhagga,
who have been convicted under section 302, Indian
Penal Code, for the triple murders of Ganesh, Gheesa
and Hardas.
The case relates to an incident which took place on
the night between the 3rd and 4th April, 1951. Gheesa
and Ganesh, deceased, Ratna, Govind, another Ganesh
who is a witness in the case, and Hardas had gone to
"Imaratia " a well in village Gadwara on that night
to keep watch over the crops there. Gheesa slept in
one shed near the well, while Hardas slept in another
shed some distance away, and Ratna slept in a third
shed near the entrance gate. Ganesh, deceased, Ganesh
(P.,V.), and Govind slept on the threshing floor further
away from the well. Some time after midnight Ratna
woke up on hearing the cries of Gheesa. It is alleged
that he then saw the two accused beating Gheesa,
accused Magga having in his hand a farsi and accused
Bhagga having a katari and an axe. Hardas, who woke
up on hearing the cries, rushed to the aid of Gheesa and
thereupon the two accused.. Magga and Bhagga, fell
upon him and attacked him with farsi and axe. Ratna,
,'\.
j.
s.c.R.
SUPREME COlHtT REPORTS
975
ran away and hid himself near the well. On an alarm
being raised, one Krishna who was working on a nearby
well came and witnessed the attack on Hardas. The
accused, after finishing Gheesa and Hardas went to the
threshing floor where Ganesh, deceased, was sleeping.
There Magga asked Bhagga to hit Ganesh with the axe
and Bhagga immediately hit Ganesh with the axe and
he fell down. Thereafter Magga hit Ganesh two or three
times with the farsi on the legs and Bhagga cut the
neck of Ganesh with the katari. Govind (P.W.) entreated on behalf of Ganesh but he was threatened and
was told that if he did not keep quiet he would also be
killed. Without injuring Govind and Ganesh (P.Ws.)
the accused then left the place.
Information of the incident was carried to the
village by Ratna and a report of it was made to the
police at 11-30 a.rn. on 4th April, 1951. In the report
it was stated that " Bhagga and Magga are standing
at their house with swords and are saying that they
would kill more persons. Village people are surrounding them outside the house''. The sub-inspector of
police, when he arrived at the village, found the house
of the accused surrounded by the village people. The
door of the house was dosed from inside and the
accused were standing on the chabutra inside. Magga
had a farsi in his hand and Bhagga had an unsheathed
sword.
The sub-inspector got the door opened,
arrested the accused, and took possession of the farsi
and the sword. He also recovered the axe and a
katari which were bloodstained. The clothes of the
accused were also taken possession of after the arrest
and they appeared to have bloodstai1rn on them.
The acuused pleaded not guilty. They admitted
their partnership in cultivation at "Imaratia " well
with the deceased but denied that any quarr<!l took
place between them and tbe otber partners about the
cutting of the crop. They also denied that the~· had
gone to the well armed with various weapons aml had
committed the murder ofGheesa, Hardas and Ganesh.
The sessions judge on the evidence led by the prosecution fo!t satisfied that the prosecution case was
•
1963
Magga
and Another
v.
TheStaU of
Rajasthan.
Mahajan J.
•
1953
Muggrt
luul, Another
v.
'l.'lw State of
Rajasthan.
Mahajan J.
976
SUPREME COURi' kEPOR'.i's
[1953]
proved beyond all reasonable doubt. It ;was held that
the murder was brutal and advantage had been taken
of the persons who were sleeping to kill them. In the
result the appellants were convicted under section 302,
Indian Penal Code, and sentenced to death.
The
sentence of death passed on them by the sessions judge
was confirmed by the High Court after examining the
evidence afresh. In the High Court a contention was
raised that the whole trial was vitiated inasmuch as it
had not been conducted in accordance with procedure
prescribed by law. This contention was negatived on
the ground that the irregularities committed in the
course of the trial were such as were cured by the provisions of section 537, Criminal Procedure Code. As
the objection raised concerned the validity of the trial
the case was certified as a fit one for appeal to this
Court.
The facts which concern the validity of the trial,
shortly stated, are these : The trial began on 22nd
March, 1952. Three assessors had been summoned for
that date. Of these two were present while the third
did not come. Thereupon one person who was present
in the court premises and whose name was in the list
of assessors but who had not been summoned in the
manner prescribed by the Code of Criminal Procedure
was chosen as an assessor. The trial then began with
the three assessors so chosen, viz., Jethmal, Balkrishna
and Asharam. On the 6th June, 1952, Jethmal, one of
the assessors absented himself and for some reason,
which is not clear from the record, one Chimniram was
asked to sit in place of Jethmal as an assessor with
the result that on the 6th June, 1952, there were three
assessors, viz., Balkrishna and Asharam, who had been
sitting from the beginning of the trial, and Chimniram
who was introduced for the first time that day. On
the 23rd .June also Chimniram, Balkrishna and
Asharam sat as assessors. On 27th June, however,
Jethmal re-appeared and was allowed to sit and since
that date four assessors sat throughout, viz., Jethmal,
Chimniram, Balkrishna and Asharam. Eventually all
these four assessors gave their opinion on the first
•
' ...
) .. '
s.c.R.
SUPREME COURT REPORTS
977
July, 1952, wqen the trial came to an end. It was contended that the trial was bad as it took place in
defiance of the provisions of sections 284 and 285 of
the Code of Criminal Procedure and that such an
illegality could not qe cured by the provisions of section 537 of the Code.
In order to judge of the validity of this objection it
is necessary to set out the provisions of the Code relevant to this matter. Section 284 provides that, "When
the trial is to be held with the aid of assessors, not less
than three and, if possible, four shall be chosen from
the persons summoned to act as such". The section as
it originally stood required that " two or more shall
be chosen as the Judge thinks fit", so that there had
to be a minimum of two assessors. In the year 1923,
that provision was amended so as to make a minimum
of three assessors an essential requisite for a trial to be
held with the aid of assessors. A trial commenced
with less than three assessors is not authorised by the
provisions of this section as it now stands. Therefore,
unless a case comes within the provisions of the next
following section 285, a trial held in defiance of the
provisions of section 284 would not be legal. Section 285, however, has no application to cases where a
trial is commenced with less than three assessors.
[Vide Balak Singh v. Emperar (1); Sipattar Singh
v. King-Emperor(')]. Section 285 provides:-
. "( 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 absents himself, and it is not
practicable to enforce his attendance, the trial shall
proceed with the aid of the other assessor or assessors.
(2) If all the assessors are prevented from attending or absent themselves, the proceedings shall be
stayed and a new trial shall be held with the aid of
fresh assessors."
In cases contemplated by this section a trial commenced with the aid of three assessors can be
(1) A.I.I{. 191.S Fat. 420.
(2) A.I.IL 19,2 All. qo.
•
1963
Magga
und Another
v.
'l.'he State of
Rajasthan.
Mahajan J.
•
1953
1liagga
and Arwthe-r
v.
The State of
flajasthan.
J.liahaja.n .J.
978
SUPREME coURii REPORTS
[1953j
continued and finished with the aid of.less than three
assessors. This section, howeve-r, does neither authorize the substitution of an assessor for an absent assessor, nor does it authorise an addition of rt11 assessor to
the number of assessors during the c:ourse of the trial.
The effect of the provisions of sections 284 and 285 is
that a trial cannot be va,lidly commenced with less
than three assessors chosen in the manner prescribed
by the Code, but once validly commenced it can be
continued in certain cases to a finish if some, though
not all, of the persons originally appointed, attend
throughout the trial. lf all of them do not attend,
then a fresh trial has to be held. An addition in the
number of the assessors or a change or substitution in
their personnel during the course of the trial is not
warranted by the Code; on the other hand, it is implicitly prohibited.
The procedure prescribed by section 285(1) is not of a permissive nature. It has to be
followed if the conditiorn; prescribed are fulfilled, and
like section 285(2) it is nf a mandatory character. No
scope is loft in these provisions for the exercise of the
discretion of the judge for wpplementing these provisiorn and for holding a trial in a manner different from
the one prescribed aml for conducting it witfi the aid of
some assessors originally appointed, itml also with the
aid of some others recruited during the trial.
Section 309 provides that when a trial is concluded, the
court may sum up the evidence for the prosecution
and defence and shall then require each of the assessors
to state his opinion orally and shall record such opinions. Sub-clause (2) of this section enacts that the
judge shall then give judgment, but in doing so shall
not be bound to conform to the opinions of the assessors.
Sections 326 and 327 enact the method and
manner of summoning assessors and jurors. Section
537 provides as follows:-
''Subject to the provisions hereinbefore contained,
no finding, sentence or order passed by a Court of
competent jurisdiction shall be reversed or altered
under Chapter XX VII or on appeal or revision Oil
account-
.. '
) ,.
S.C.R.
SUPREME COURT REPORTS
979
(a) of any error, omission or irregularity in the
complaint, sutiunonH, warrant, charge, proclamation,
order, judgment or other proeeediugs before or during
trial or in any inquiry or other proceedings under this
('ode, or ...
( c) of the omission to revise any list of jurors or
assessors in accordance with section 324, or
(cl) of any misdirection in any charge to a jury,
uJ1less such error, omission, irregularity or misclirection
has in fact occasioned a failure of justice."
The first objection that was taken in the High Court
to the validity of the trial was that Asharam who had
not been summoned as an assessor could not be
appointed as such and hence it should be held that the
trial commenced with a minimum of two assessors in
defiance of the provisions of section 284.
What
happened was this: On the date fixed for the trial
there was a deficiency in the number of persons who
had been summoned and who appeared to act as assessors, the court then sent for Asharam whose name was
in the list of assessors and ordered him to sit as an
assessor. The High Court took the view, and we think
rightly, tha.t the circumstance that the formality of
issuing a summons was not gone through was a mere
irregularity which was curable under section 537 of the
Code, as there was no failure of justice caused on
account of that irregularity and that the trial on that
account could not be held to be bad. This view is in
accord with the decision of the Calcutta High Court in
King-Emperor v. Rainsidh Rai(') with which we agree.
We are constrained, however, to observe that the
High Court did not fully appreciate the decision of the
Patna High Court in Balak Singh v. Jtm.peror('), when
it said that that decision held a trial bad where a person was ehosen as an assessor who had uut been summoned. In that case during the examination of the
Jirst witness only one qualified assessor was present in
court and capable of acting as such, the judge ordered
another pernon who happened to be present in court
hut was not in the official list of assessors to act as an
(r) 39 Crl. L.J. 725.
(2)
A.I.R. r9r8 Pat. 420,
•
19.!3
Magga
and Another
v,
'PM State of
Raja,sth.nn,
Mahajan J.
•
1953
.2llagga
and Another
v.
The State of
Raja8than.
A-lahaja,n J.
980
SUPREME COURT REPORTS
[1953]
assessor, and it was held that as the tri:i,l commenced
with only one assessor and not with two duly qualified
assessors the trial was abortive and contrary to law.
No exception could therefore be taken to the rule
stated in this decision.
The second objection against the validity of the trial
taken before the High Court was founded on
section 285.
It was contended that when one of
the assessors appointed absented himself the court
was bound, under section 285, to ascertain before
proceeding further with the
trial
whether the
absence of the
assessor
was
due to sufficient
cause and whether it was practicable to enforce his
attendance and that the judge in this case failed to
observe this condition which alone entitled him to continue the trial with the remaining assessors and that
the defect was fatal to the validity of the trial. The
High Court held that though there was non-compliance
with the provisions of section 285 in the case, this
irregularity was cured by section 537 as it had not in
fact caused failure of justice. We agree with the High
Court in this conclusion. It is no doubt true that the
section enjoins on the judge a duty to find whether
there is a sufficient cause for the non-attendance of an
assessor and whether it is not practicable to enforce
his attendance, and ordinarily the proceedings must
represent on their face whether this duty has been
performed, but we think that such an omission on his
part does not necessarily vitiate the trial.
We are
further of the opinion that when a judge proceeds with
a trial in the absence of one or two of the assessors
with the aid of the remaining assessor or assessors, it
may be presumed that he has done so because he was
satisfied that it was not practicable to enforce the
attendance of the absent assessor or assessors and that
there was sufficient cause for his or their non-attendance.
If, however, there is evidence to a contrary effect, the
matter may be different. Failure to record an order
indicating the reasons for proceeding with the trial
with the aid of the remaining assessors can at best be
an irregularity or an omission which must be held to
' . '
'
_, .
S.C.R.
SUPREME COURT REPORTS
981
be such as to come within the reach of section 537 unless it has in fact occasioned a failure of justice. It
could not be seriously argued that such an omission
can lead to such a result.
Finally the learned counsel contended, also relying on
section 285, that the sessions judge had no jurisdiction
or power to substitute an assessor or to reinstate the
absent assessor, or to add to the number of assessors.
When the point was raised before the High Court, it
fully realized that there was no provision in law which
permitted such substitution of an absent assessor by
another assessor or the subsequent reinstatement of an
absent assessor as had been
done in this case.
It, however, felt that the irregularity was of the same
nature as non-compliance with the provisions of
section 285, and as such was cured by section 537 of
the Code. In regard to the addition of an assessor
during the trial it said :-
"We have not been able to find any reported case
where an assessor harl been added in the middle of the
trial as has been done by the learned judge. That is
perhaps due to the fact that no judge ever did Buch an
obviously silly thing, but considering that the trial, in
any case, continued with the aid of two assessors who
were there throughout, there was, in our opinion, substantial compliance with the mode of trial provided in
the Code and the irregularity committed by the addition of Chimniram in June, 1952, is curable under
section 537 as it did not occasion any failure of justice.
The sessions judge was still the court of competent
jurisdi0tion to try the case and all that he did was to
add unnecessarilv one more assessor to advise him when
he had no busin~ss to do so. We can ignore his presence
altogether and as the irregularity has not caused failure
of justice, the trial will not be vitiated".
In our judgment, the High Court was in error
in this view.
The sessions judge during the progress
of the trial not only made a change in the personnel
of the assessors originally appointed and also added
to their number, ln1t )le actually took the opinions
127
•
1963
Ma,ga
and Another
v.
The State of
Rajasthan,
Ma,hajan J.
•
1953
Magga
and Another
v.
The State of
Rajasthan..
},f aha;"an J.
982
SUPREME COURT REPORTS
[1953!
of all the four assessors as required by the provisions of section 309 of the Code, and acted in
accordance with those opinions in convicting the two
appellants. It is plain that a unanimous verdict of
four assessors is bound to weigh much more with a
judge than the opinion of two persons. \Ve have not
been able to understand how the High Court could
ignore the presence of assessors altogether who had
given their opinions and which opinions had been
accepted by the judge. The opinion of an assessor is
exercised in the judicial function imposed upon him by
law, and the judge is bound to take it into consideration and he cannot dispense with it.
The judge
considered this trial as if he had commenced it with
the aid of four assessors, and taking into consideration
their opinion, he convicted the appellants.
It is
difficult to assess the value which the judge gave to
the opinions of the assessors at the time of arriving at
his finding and the High Court was in error in thinking that it did no harm and caused no prejudice. We
ca1mot subscribe to the view of the High Court that
the trial should be taken as having been conducted
with the aid of the two assessors as sanctioned bv
section 285, Criminal Procedure Code.
That is not
what actually happened. It is difficult to convert a
trial held partly with the aid of three assessors and
partly with the r1id of fom assessors into one held with
the aid of two assessors only. At no stage was the
trial held with the aid of two assessors only.
The
third substituted assessor attended a part of the trial
and the added fourth assessor also attended a part of
it. None of these two were present throughout. Thus
the trial when it concluded was a different trial from
the one which was commenced under the provisions of
section 284, Criminal Procedure Code.
To a situation
like this we think section .537 cannot be called in aid.
Such a trial is not known to the Code and it seems
implicitly prohibited by the provisions of sections 284
and 285.
What happened in this case cannot be
described as a mere error, omission or irregularity in
the course of the trial. It is much more serious. H
' ...
I
s.c.R.
SUPHEME UOUR'i' REPOR,TS
983
amounts to holding a trial in violation of the provisions
of the Uode and goes to the root of the matter and the
illegality is of a <·.haracter that it vitiates the whole
proceedings.
As observed by their Lordships of the
Privy Council in Subramania Iyer v. King-Emperor('),
disobedience to an express provision as to a mode of
trial cannot be regarded as a mere irregularity.
In
Abdu.Z Rahman v. King-Emperor{'), the distinction
between cases which fall within the rule of section 537
and those which are outside it was pointed out by
Lord Phillimore. There it was said that tlw distinction
between Subramania, Iyer'8 ca .. ~e (1) and that case in
which there was an irregularity in <>omplying with the
provisions of section 360 of tht' Cmk lnlS fairly obvious.
In Subramania lyer's case (1) the pnwedure adopted
was one which the Code positiYely prohibits and it
. was possible that it might have worked actual injustice
to the accused but that the error in not reading the
statements of witnesses to them was of a different
character, and such an omission was not fatal.
In
Pululcurti Kotayya v. 1\. ing-Emperor(") their Lordships
again examined this qm'stion. That wtts a cas¥ where
there had been a breach of th0 provisions of section
162, Criminal Procedure Code, and it was held that
in the peculiar eircumstances of that case it had not
prejudiced the accused and the ca,se therefor" fell
under section 537 and that the trial was vaJid notwithstanding
the
breach of section 162.
Sir John
Beaumont in delivering the decision of the Board made
the following observations which bring out the distinction between the two sets of cases : --
"There are, no doubt, authorities in India which
lend some support to !\!fr. Pritt's contention, and
reference may be made to 7'irlcha v. Nanak('), il1
which the court expressed th':' view that sedion 537,
Criminal Procedure Code, applied only to errors of
procedure arising out of mere inadvertence, and not
to cases of disregard of, or disobedience to, mo,ndatory
provisions of the Code, and to In re Jlarlura 11111tlw
(1) (1901) ·z8 I.A. z57.
(2) (1927) 54 I.A. 96.
(3) (1947) 74 I.A. 65,
(4) (19n) !.LR. 49 All. 475·
•
1953
Magga
(tttd Another
v.
The State of
Rajasthan.
Mahajan ,J,
•
1953
Magga
and Another
v.
The. State of
Ra.ja$lhan.
}Jaha}an J,
984
SUPREME COURT REPORTS
[1953]
Vannian(' ), in which the view was expressed that any
failure to examine tbe accused under section 342,
Criminal Procedure Code, was fatal to the validity of
the trial, and could not be cured under section 537.
In their Lordships' opinion, this argument is based on
too narrow a view of the operation of section 537.
When a trial is conducted in a mrmner different from
that prescribed by the Gode [as in Subramania Iyer's
case(')], the trial is bad, and no question of curing an
ii-regularity arises: but if the trial is conducted substantially in the manner prescribed by the Code, but
some irregularity occurs in the course of snCJ~l conduct,
the irregularity can be cured under section 537, and
none the less so because the irregularity involves, as
must nearly always he the case, a breach of one or
more of the very com prehensi vc provisions of the
Code.
The distinction drawn in many of the cases in
India between an illegality find an irregularity is one
of degree rather than of kind. This view finds support
in the decision of their Lordships' Boflrd in Abdul
Rahman v. ]( ing-Emperor( 3 ), where failure to comply
with section 3GO, Criminal Procedure Code, was held to
be cured by sections 535 and 5Bi. The present case
falls under section 537, and their Lordships hold the
trial valid notwithstanding the breach of section 162."
In our judgment, the trial conducted in the present
case was conducted in fl nrnnner different from that
prescribed by the Code and is bad and no question
here flrises of curing flny irregularity. The Code does
not authorize a trial commenced with the flid of three
named assessors to be conducted and completed with
the aid of four assessors. The substitution of one
assessor by another and an addition to the number of
assessors appointed at the commencement of the trial
is not sfluctioned by section 285, Criminal Procedure
Code, nor is it authorized by section 284. On the other
hand, the language of section 285( 1) read with the
provisions of section 285(2) implicitly bans the holding
of such a tria.I. It is uot possible to say with any degree
(1) (1922) I.LR. 45 l\lad. 820.
(%) (1901) is I.A. ~7·
(3) (1927) 54 I.A. 96.
.\
•
•
S.C.R.
SUPREME COURT REPORTS
985
of certainty to what extent the opinion of the outgoing
and the incoming assessors who did not attend the
whole of the trial influenced the decision in the case ;
but as such a trial is unknown to law, it has to be
presumed that it was illegal.
Mr. Mehta for the State Govemment contended thttt
under section 309(2) the opinion of assessors is not
binding on the sessions judge and their presence or
absence does not affect the constitution of the court
and that as at this trial at least two of the assessors
originally appointed sat throughout the trial it should
be held that the trial was substantially a trial conducted in accordance with the provisions of the Code. The
learned counsel did not go to the length of urging that
a trial without the aid of any assessorn whatever was
a good trial under the Code. Such a contention, if
raised, would have to be negatived in view of the clear
provisions of section 284 and of sub-section (2) of section 285.
The appointment of at least three assessors
is essential for the validity of a trial of this character
at its commencement, and once validly commenced, in
certain events, it can be validly concluded if at least
one of them remains present throughout, while others
drop out ; but a trial conducted in the manner in
which it was done in this case is wholly outside the
contemplation of the Code and it is not possible to
hold that it was concluded according to the provisions
of the Code. The provision in the Code that the opinion
of the assessor is not binding on the sessions judge
cannot lend support to the contention that the sessions
jndgr is entitled to ignore their very existence.
As
already pointed out, though he may not be bound to
accept their opinions, he is certainly bound to take
them into consideration. The weight to be attached to
such opinions may well vary with the number of
assessors.
:\:Ir. Mehta to support his contention placed reliimce
on tho majority decision of the Madras High Court in
King-Emperor v. Tirumul Reddi (1).
In that case the
trial continued for about seven weeks.
During that
(l) (l901) I.L.R. 24 Mad. 523.
1953
Magga
n.ndAnotMr
v.
The State of
Rajasthf1n.
MahajanJ.
•
1953
illagga
and Another
v.
The State of
.Rajasthan.
Mah~jan .J.
986
SUPREME COlTRT REPORTS
[1953]
period one of the assessors was permitted tci absent
himself during two whole days, and five half days
respectively, at first, so that he might visit his mother
on her death-bed, and subsequently, to perform the
daily obsequies rendered necessary by her decease.
He then resumed his seat as an as~essor and continued
so to act until the termination of the trial. all the
depositions recorded in his aJ1sence having b~en read
by him on his return.
At the conclusion of the trial
the sessions judge invited the opinion of each assessor,
and recorded it. The opinion of each was that all the
accused were guilty and the judge concurring in that
opinion, convicted the accused.
On appeal it was
contended that the judge had acted contrary to
law in allowing the assessor who had been absent
to resume his seat as an assessor and in inviting
and taking into consideration his opinion in deciding
the case. It was held by the majority of the court
that the finding and the sentence appealed aga.inst had
been passed by a court of competent jurisdiction within the meaning of section 537 of the Code and that the
defect in the trial did not affect its validity and was
cured by that section as the irregularity
0
had not in
fact occasioned a failure of justice. llfr. Justice Davies
took a different view. This decision was clearly given
on the peculiar fact8 and circum8tances of that case and
is no authority in support of the view contended for
by Mr. Mehta.
For the reasons given above we are constrained to
hold that the trial of the appellants conducted in the
manner above stated was bad and the <tppellants
have to he retried in accordance with the procedure
prescribed by the Code.
In the result we allow this appeal, quash the conviction and sentence passed on the appellants, and direct
their retri!tl by the sessions judge in accordance with
the procedure prescribed by the Code.
Appeal allowed Retrial ordered.
Agent for the respondent: G. H. Rajadhyaksha.
,,
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