Tyrrell, J.@mdashA preliminary point was raised by the learned counsel who appeared for the appellants. He contended that the conviction of his clients was bad in law for want of jurisdiction in the Court below. The trial began before the learned Sessions Judge of Moradabad and three assessors on the 10th day of August 1890. This was in due conformity with the rule contained in s. 268 of the Code of Criminal Procedure, that all trials before a Court of Sessions shall be either by jury or with the aid of assessors. In an early stage of the trial one assessor died, and later on another assessor became too ill to take any further part in the trial. The trial reached its latest stage at the sitting of the 18th day of September 1890, when the assessor Govind Ram alone attended. The case for the prosecution having closed, and the examination of the accused and of some of their witnesses having been had, the learned pleader for the accused addressed the Court for about an hour and a half on the law and merits of the case. Before he had spoken more than ten minutes Mr. Govind Ram obtained leave from the Judge to leave the Court house on the plea of illness and consequent confusion of mind. He did not return till the address on behalf of the accused was finished, and having heard the Government Pleader reply for the prosecution he gave his opinion that the accused were guilty, on vague and unsatisfactory grounds. On these facts Mr. Pogose claims that the trial was bad with reference to ss. 268 and 285 of Act X of 1882. The point is new and of considerable importance. It is clear that a trial held by a Sessions Judge without any assessor would be bad for want of jurisdiction. It is equally certain that if all the assessors with whose aid a Sessions Court commenced a trial "are prevented from attending (throughout the trial) or absent themselves, the proceeding shall be stayed and a new trial" must be held. The question arises, however, as to what is the meaning of the words "prevented from attending, or absent themselves." Mr. Govind Ram attended throughout the most part of the trial and absented himself for a portion thereof only; but can he be said to have attended and not to have been absent in the substantial sense of s. 285? I have had the advantage of consulting my brother Straight, and I am of opinion that this question must be answered in the negative. The first part of s. 285 explicitly provides that the assessors shall attend throughout the proceedings, that is to say, that there shall be no break in their attendance, which shall be exactly commensurate with the entire continuance of the trial down to the time when the finding is made. In the case before me the portion of the trial covered by the provisions of s. 290, a very important portion from the point of view of the accused, was conducted without the aid of any assessor, and to that extent the attendance was not continuously complete. I must allow this plea, with the result that I am constrained to find that the trial was before a Court without jurisdiction and must therefore be set aside. The conviction, sentence and all other proceedings before me are annulled, and a new trial must be had according to law.
