The system known as Trial by Jury, may, at its best, be safely put at the head of all the Judicial systems, upto now known in the civilized world. It is a system, which, can hardly be said, to do any harm, for, Trial by Jury, means nothing but Justice in its purest and simplest form. Yet, so unfavourable indeed, is the opinion of some, with respect to the system, that they are inclined to proscribe the whole, for the defects of a part, to reject much that is sound, on account of the little that is unsound, by one sweeping and indiscriminate condemnation. But when, looking minutely into ite spirit, we consider the success, with which it has worked, and the amount of check, it has helped to put on crime, by making the laws of the land, better and more widely known, we cannot but admire its dual character, which, while calling in the people, to form their opinion on the facts, retains and profits by all the advantages, derivable from the training and experience of a judge, as regards the law, of a case. Mr. Routledge in his ‘ Popular Progress in England ” speaks of the system, as preserving the freedom of the people, and illumining the administration of the kingdom : — ‘ Trial by Jury never in itself, required any defence in England, and has never needed a man, to maintain its glorious position [The institution of trial by jury in India-Wadia, Sorab P. N]
It is now over a century, since England took upon herself the mangement of the affairs of this country. Although the English had established themselves in India, from the beginning of the 17th century/it was not till the reign of George III, that Trial by Jury was introduced here by Act XIII of 1774, of the Imperial Parliament of England, for the establishment of a Supreme Court in Calcutftt, repealing the Charter of George II. whereby courts of civil, criminal, and ecclesiastical jurisdiction were established in India, in the United Company’s settlements of Madraspatam, Bombay, and Fort William, in Bengal It is provided that ‘all offences and misdemeanours, which shall be laid, tried, and in quired of, in the said Supreme Court shall be tried by a Jury of British subjects, resident in the town of Calcutta, and not otherwise.” In the year 1800, a Supreme Court was established in Madras, and on the 8th May 1824, by Letters Patent of King George IV., dated the 8th day of December 1823, Supreme Court of Judicature, or a Court of Oyer and Terminer and Gaol Delivery” was established, in the town of Bombay. The Government of India by their Act XI of 1836, abolished the system in the trial of civil cases. The history of Trial by Jury in India, is chiefly embodied, in the three Criminal Codes of the Council of India of 1861, 1872) and 1882, and in the general inquiry by the Government of India, in 1890, and by the Bengal Commission of 1893, on the working of the system. While the Code of 1861, introduced the system in its entirety in India, those of 1872, and 1882, simply modified it.
The particular offences triable by an Indian Jury are :— .-Treasons, Felonies, Murders of Forgeries, Perjuries, Crimes, Extortions, Misdemeanours, Offences, Wrongs and Oppressions. In India, the system is not working on an uniform scale, for while in the Presidency towns of Bombay and Calcutta, all the abovesaid classes of crimes are triable before a Jury, the Mofussil Juries have the power to try such of these ofiences only, as the respective Governments ijiay, from time to time, specify. It seems that the Madras Presidency, was the first to adopt the system, with certain restrictions.
About the year 1852, an act was proposed in the Council of India, to give to every man, the right of being lawfully tried by the judgment of his peers. But the act was considered premature, for the comparatively, ignorant and uncivilized people of this couutry. Before the epoch of the introduction of the system, its place was occupied by the trial by Panchayat. All the local Governments; thought very highly of this system, and considered it to be best suited, to the primitive inhabitants of this country. In 1861 an Enactment was passed in the Parliament, whereby High Courts were to be established in the presidency towns of India, in place of the Supremethen existing. The same civil, and criminal jurisdiction, was enjoined for the former, as obtained by the latter. The Supreme Council of India, introduced the latter system, by act XXV of 1861, of the Code of Criminal Procedure, under which the Indian Juries were to be of the nature of an examining body, selected from the loyal subjects of Her Majesty, and guided in their office, as to the technicalities of the law, by the presiding Judge. The constitution of an Indian Mofussil Jury required, that it should be in the’ power of the Local Goyernment, to specify the crimes liable to be tried by them. That every year a list of the Jurors, was to be published, prepared by the Collector, with the
assistance of the Sessions Judge.
Indian Position before Nanavati Case(1961)
All trials before a Court of Session shall be either by jury, or by the Judge himself.(s-268)
In trials by jury before the Court of Session the jury shall consist of such uneven number, not being less then seven or more than nine.(s-274).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 form a list of Jury.
When the jurors have been chosen, they shall appoint one of their member 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. When the foreman has been appointed, the jurors shall be sworn under the Indian Oaths Act, 1873.
Duty of Jury u/s 299
It is the duty of the Jury-
(a) to decide which view of the facts is true and then to return the verdict which under such view ought, according to the direction of the Judge, to be returned;
(b) to determine the meaning of all technical terms (other than terms of law) and words used in an unusual sense which it may be necessary to determine, whether such words occur in documents or not;
(c) to decide all questions which according to law are to be deemed questions of fact ;
(d) to decide whether general indefinite expressions do or do not apply to particular cases) unless such expressions refer to legal procedure or unless their meaning is ascertained by law, in either of which cases it is the duty of the Judge to decide their meaning.
Illustrations (a) A is tried for the murder of B. It is the duty of the Judge to explain to the Jury the distinction between murder and culpable homicide, and to tell them under what views of the facts A ought to be convicted of murder, or of culpable homicide, or to be acquitted. It is the duty of the Jury to decide which view of the facts is true and to return a verdict in accordance with the direction of the Judge, whether that direction is right or wrong, and whether they do or do not agree with it.
(b) The question is whether a person entertained a reasonable belief on a particular point-whether work was done with reasonable skill or due diligence. Each of these is a question for the Jury.
In cases tried by Jury, after the Judge has finished his charge, the Jury may retire to consider their verdict. Except with the leave of the Court, no person other than a Juror shall speak to or hold any communication with, any member of such Jury. When the Jury have considered their verdict, the foreman shall inform the Judge what is their verdict, or what is the verdict of a majority or that the Jurors are equally divided in opinion.
Trial by Jury outside the Presidency Towns was first introduced in the Code of Criminal Procedure of 1861, and the verdict of the Jury was, subject to re-trial on certain events, final and conclusive. This led to miscarriage of justice through jurors returning erroneous verdicts due to ignorance and inexperience. The working of the system was reviewed in 1872, by a Committee appointed for that purpose and on the basis of the report of the said Committee, S. 262 was introduced in the Code of 1872. Under that section, where there was difference of view between the jurors and the judge, the Judge was empowered to refer the case to the High Court in the ends of justice, and the High Court dealt with the matter as an appeal.
But in 1882 the section was amended and under the amended section the condition for reference was that the Court should differ from the Jury completely; but in the Code of 1893 (sic) the section was amended practically in terms as it now appears in the code, the history of the legislation shows that the section was intended as a safeguard against erroneous verdicts of inexperienced jurors and also indicates the clear intention of the Legislature to confer on a High Court a separate jurisdiction, which for convenience may be described as “reference jurisdiction”. Section 307 of the Code of Criminal Procedure 1898, while continuing the benefits of the Jury system to persons tried by a Court of Session, also guards against any possible injustice, having regard to the conditions obtaining in India.[ K. M. Nanavati Versus State of Maharashtra]
Procedure of Evidence
In Ramkrishan Mithanlal Sharma vs. State of Bombay, (1955) 1 SCR 903, supreme Court observed that S. 297, Criminal Procedure Code imposed a duty on the Judge in charging the Jury to sum up the evidence for the prosecution and defence and to lay down the law by which the Jury were to be guided:but summing up for the prosecution and defence did not mean that the Judge should give merely a summary of the evidence; he must marshal the evidence so as to give proper assistance to the Jury who are required to decide which view of the facts is true. This Court referred with approval to the following observations made by the Privy Council in Arnold vs. King Emperor, ILR 41 Cal 1023:
“A charge to a Jury must be read as a whole. If there are salient propositions of law in it, these will, of course, be the subject of separate analysis. But in a protracted narrative of facts the determination of which is ultimately left to the Jury, it must needs be that the view of the Judge may not coincide with the view of others who look upon the whole proceedings in black type. It would, however, not be in accordance with usual or good practice to treat such cases as cases of misdirection, if, upon the general view taken, the case has been fairly left within the Jury’s province. But in any case in the region of fact their Lordships of the Judicial Committee would not interfere unless something gross amounting to a complete misdescription of the whole bearing of the evidence has occurred.”
The function of a charge is to put the Jury in a position to weight and assess the evidence properly in order that they may come to a right decision on questions of fact which, under the law, is their responsibility. The charge must therefore address itself primarily to pointing out what the questions of fact are, what the totality of the evidence on each of the questions is, how the different portions of that evidence, lying scattered in the depositions of several witness, fit with one another, what issues or subsidiary questions they raise for decision and what the effect will be according as one part or another of the evidence is believed or disbelieved. [Sunil Chandra Roy vs. State, 57 Cal WN 962]
There is no difference between a trial with the help of the Jury and a trial by a Judge in so far as the appraisement of evidence is concerned. The value of the evidence in each case must necessarily be the same. If the case of Mary Ann Nash (1911) Cr. App. R. 225 could be left to the Jury, here too the case has been decided by the two Courts below concurrently against the appellant on evidence on which they could legitimately reach the conclusion whether an offence of murder had been established or not.
The scheme of Jury trial under Code of Criminal procedure 1898
The scheme of the Code clearly suggests that at a trial in the Court of Session the trial can be either with the aid of assessors or by a Jury depending upon whether the offence for which the accused was being tried was triable with the aid of assessors or by a Jury. The Code even contemplates a trial of the accused for certain offences which were triable with the aid of assessors and other offences which were triable by a Jury at the same trial, in which case the jurors acted as assessors for the offences which were triable with the aid of assessors.
Although a trial by a Jury was provided for by the Code, it did not compel the judge to accept the verdict. It permitted him to disagree with it but did not permit him to record a judgment unlike the case of a trial with the aid of assessors where the Judge could disagree with their opinion and record a judgment. The purpose of the Code was to regard the Jury’s verdict as of sufficient importance to prevent the Judge in the Court of Session from recording a judgment if the judge disagreed with it. It was considered that if the verdict of the Jury was to be displaced it must be displaced, if at all by the High Court which must give due weight to the opinion of the Jury and the Judge and after considering the entire evidence.
In other words, the High Court could do what the Jury did after giving due weight to the opinion of the Judge and considering the entire evidence. Ordinarily, a Jury’s verdict on questions of fact would not easily be disregarded by the High Court because the basic principle of a trial by Jury is that the Jury are masters of fact. The verdict of the Jury would not be reversed by the High Court merely because it disagreed with it. If the High Court, after considering the entire evidence, came to the conclusion that no reasonable body of men could have reached the conclusion arrived at by the Jury, then the High Court would be entitled to disregard the verdict.
After Nanavati case Jury system abolished in India.
Refer : Code of Criminal Procedure 1898