LexMAGGA AND ANOTHER versus THE STATE OF RAJASTHAN
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
'
,; .
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-Asses-
soi·s-Trial with three assessors-Absence of one assessor during
trial-Substitution of new person-Legality of trial-Re-appear-
ance of absent assessor-Continuing trial with four assessors-
Va,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 at-
tending. It does not, however, authorise the substitution of an
assessor for an absent one nor an addition to the number of asses-
sors 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 asses-
sors 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 sum-
moned was allowed to sit as an assessor when the trial commenc-
ed 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 substi-
tute 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 com-
menced 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. Excerpt shown. Read the full judgment & AI analysis in Lexace.