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under the Letters Patent of any High Court established under the twenty-fourth and twenty-fifth of Victoria, chapter 104, the trial may, if the High Court so directs, be by jury.

268. All trials before a Court of Session shall be either by Trials bejury, or with the aid of assessors1.

fore Court of Session.

Govern

before Court of

Session to be by jury.

269. The Local Government may, by order in the official Local Gazette2, direct that the trial of all offences, or of any par- ment may ticular class of offences, before any Court of Session, shall be order trials by jury in any District, and may revoke or alter such order. When the accused is charged at the same trial with several offences of which some are and some are not triable by jury, he shall be tried by jury for such of those offences as are triable by jury, and by the Court of Session, with the aid of the jurors as assessors, for such of them as are not triable by jury 3. 270. In every trial before a Court of Session, the prosecu- Conduct tion shall be conducted by a Public Prosecutor.

B.-Commencement of Proceedings.

of trial before Court of

Session.

mencement

271. When the Court is ready to commence the trial, the Comaccused shall appear or be brought before it, and the charge of trial. shall be read out in Court and explained to him 5, and he shall be asked whether he is guilty of the offence charged, or claims to be tried.

If the accused pleads guilty, the plea shall be recorded 8, Plea of and he may be convicted thereon 9.

guilty.

he Refusal to plead or

272. If the accused refuses to, or does not, plead, or if claims to be tried, the Court shall proceed to choose jurors or claim to be assessors as hereinafter directed and to try the case :

tried.

same jury

or assessors

Provided that, subject to the right of objection hereinafter Trial by mentioned, the same jury may try, or the same assessors may aid in the trial of, as many accused persons successively as the of several Court thinks fit.

1 But see sec. 536.

See the notifications mentioned

in the Appendix to the Code.

s Act X of 1886, sec. 9.

Sec. 4, cl. (m), supra.

5 5 Cal. 826: 9 Mad. 61.

6 not his counsel or pleader, 15 Suth. Cr. 42.

An admission which does not VOL. II.

M

comprise all the elements of the charge
is not such a plea, 7 Cal. 96: 11 Cal.
410.

8

7 Cal. 96. The record should be in the language in which the plea is conveyed to the Court by the interpreter, 5 Cal. 826.

Where there has been a previous conviction, see sec. 310, infra.

offenders in succession.

Entry on unsustain

able charge.

Effect of entry.

Number of

jury.

Jury for trial of

273. In trials before the High Court, when it appears to the High Court at any time before the commencement of the trial of the person charged, that any charge or any portion thereof is clearly unsustainable, the Judge may make on the charge an entry to that effect.

Such entry shall have the effect of staying proceedings upon the charge or portion of the charge, as the case may be1.

C.-Choosing a Jury.

274. In trials before the High Court the jury shall consist of nine persons.

In trials by jury before the Court of Session, the jury shall consist of such uneven number not being less than three, or more than nine, as the Local Government, by order applicable to any particular district or to any particular class of offences in that district, may direct 2.

275. In a trial by jury, before the Court of Session, of a persons not person not being an European or an American, a majority of Europeans the jury shall, if he so desires, consist of persons who are neither Europeans nor Americans.

or Ameri

cans.

Jurors chosen by lot.

Proviso. Existing practice.

Persons

not attend

3

276. The jurors shall be chosen by lot from the persons summoned to act as such, in such manner as the High Court * may from time to time by rule direct :

Provided that

first, pending the issue under this section of rules for any Court, the practice now prevailing in such Court in respect to the choosing of jurors shall be followed;

secondly, in case of a deficiency of persons summoned, the summoned number of jurors required may, with the leave of the Court, ing. be chosen from such other persons as may be present5; and thirdly, in the Presidency-towns—

Trials be

fore spe

cial jurors. (a) if the accused person is charged with having committed an offence punishable with death, or

(b) if in any other case a Judge of the High Court so directs, the jurors shall be chosen from the special jury list herein

after prescribed.

But it is not an acquittal for the purpose of sec. 403; see the explanation to that section.

2 See the notifications mentioned in the Appendix to this Code.

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jurors to

277. As each juror is chosen, his name shall be called Names of aloud, and, upon his appearance, the accused shall be asked if be called. he objects to be tried by such juror.

Objection may then be taken to such juror by the accused or Objection to jurors. by the prosecutor, and the grounds of objection shall be stated: Provided that, in the High Court, objections without Objection grounds stated shall be allowed to the number of eight on grounds behalf of the Crown and eight on behalf of the person or all stated. the persons charged.

without

278. Any objection taken to a juror on any of the follow- Grounds of objection. ing grounds, if made out to the satisfaction of the Court, shall be allowed :

(a) some presumed or actual partiality in the juror1;

() some personal ground, such as alienage, deficiency in the qualification required by any law or rule having the force of law for the time being in force, or being under the age of twenty-one or above the age of sixty years;

The following list of grounds of challenge, taken from the New York Code of Criminal Procedure, § 377, with some slight omissions and verbal changes, illustrates the presumed partiality here mentioned :

1. Consanguinity or affinity, within the ninth degree, to the person alleged to be injured by the crime charged, or on whose complaint the prosecution was instituted, or to the accused.

2. Bearing to him the relation of guardian or ward, attorney or client,... master or servant, landlord or tenant,... or being in his employment on wages.

3. Being a party adverse to the accused in a civil suit, or having complained against, or been accused by him, in a criminal prosecution.

4 Having served on a coroner's jury which inquired into the death of the person whose death is the subject of the charge.

5. Having served on a jury which has tried another person for the crime with which the accused is charged.

6. Having been one of a jury formerly sworn to try the same charge and whose verdict was set aside, or which was discharged without a verdict.

7. If the crime charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the accused guilty.

'Actual partiality' is such a state of mind on the part of the juror, in reference to the case or to either party, as satisfies the Court, in the exercise of a sound discretion, that he cannot try the issue impartially and without prejudice to the substantial rights of the party challenging. But the previous expression or formation of an opinion or impression with reference to the guilt or innocence of the accused, or a present opinion or impression in reference thereto, is not a sufficient ground of challenge for actual partiality, to any person otherwise legally qualified, if he declare on oath that he believes that such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the Court is satisfied that he does not entertain such a present opinion or impression as would influence his verdict. See N. Y. Cr. Proc. Code, § 376.

Decision of objection.

Supply of place of juror

against

whom ob

jection allowed.

Foreman

(c) his having by habit or religious vows relinquished all care of worldly affairs;

(d) his holding any office in or under the Court;

(e) his executing any duties of police or being entrusted with police-duties;

(f) his having been convicted of any offence which, in the opinion of the Court, renders him unfit to serve on the jury;

(9) his inability to understand the language in which the evidence is given, or, when such evidence is interpreted, the language in which it is interpreted;

() any other circumstance which, in the opinion of the Court, renders him improper as a juror.

279. Every objection taken to a juror shall be decided by the Court, and such decision shall be recorded and be final.

If the objection is allowed, the place of such juror shall be supplied by any other juror attending in obedience to a summons and chosen in manner provided by section 276; or, if there is no such other juror present, then by any other person present in the Court whose name is on the list of jurors, or whom the Court considers a proper person to serve on the jury, provided that no objection to such juror or other person is taken under section 278 and allowed.

280. When the jurors have been chosen, they shall appoint one of their number to be foreman.

The foreman shall preside in the debates of the jury, deliver the verdict of the jury, and ask any information from the Court that is required by the jury or any of the jurors.

If a majority of the jury do not, within such time as the Judge thinks reasonable, agree in the appointment of a foreman, he shall be appointed by the Court.

Swearing 281. When the foreman has been appointed, the jurors of jurors. shall be sworn under the Indian Oaths Act, 18731.

Procedure

ceases to

282. If, in the course of a trial by jury, at any time before when juror the return of the verdict, any juror, from any sufficient cause, attend, etc. is prevented from attending throughout the trial, or if any juror absents himself, and it is not practicable to enforce his

1 Act X of 1873. The Bombay not be sworn, 3 Bom. H. C., Cr. Ca. High Court had ruled that in trials 56, and see 8 Ben. 562, per Jackbefore Sessions Courts the jurors need son J.

attendance, or if it appears that any juror is unable to understand the language in which the evidence is given, or, when such evidence is interpreted, the language in which it is interpreted', a new juror shall be added, or the jury shall be discharged and a new jury chosen.

In each of such cases the trial shall commence anew.

283. The Judge may also discharge the jury whenever the Discharge prisoner becomes incapable of remaining at the bar.

D. Choosing Assessors.

of jury in case of prisoner's sickness.

chosen.

284. When the trial is to be held with the aid of assessors, Assessors two or more shall be chosen, as the Judge thinks fit, from the how persons summoned to act as such. 285. If, in the course of a trial with the aid of assessors, Procedure at any time before the finding, any assessor is, from any sufficient cause, prevented from attending throughout the trial, unable to or absents himself, and it is not practicable to enforce his attend. attendance, the trial shall proceed with the aid of the other

assessor or assessors.

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.

when as

sessor is

E. Trial to close of Cases for Prosecution and Defence. 286. When the jurors or assessors have been chosen, the Opening prosecutor shall open his case by reading from the Indian case for Penal Code or other law the description of the offence charged, tion. and stating shortly by what evidence he expects to prove the guilt of the accused.

prosecu

Examination of wit

nesses.

The prosecutor shall then examine his witnesses 2. 287. The examination of the accused duly recorded by or before the committing Magistrate shall be tendered by the Examinaprosecutor and read as evidence 3.

1 This provision as to language was inserted by the Select Committee.

2 It is not enough to put in the depositions and allow the witnesses to be cross-examined upon them, 9 Mad. 83. When the public prosecutor does not call a witness because he would not in his (the prosecutor's) opinion speak the truth or support his case, the prosecutor should explain

tion of accused be

his reason to the Court and offer to fore Magis-
put the witness in the box for cross- trate.
examination, 7 All. 904. Where there
has been a previous conviction, see
sec. 310.

3 before the accused is called up
to enter on his defence. It must of
course be first proved that the accused
was the person who was examined
and gave the deposition, 11 Cal. 580.

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