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29. This was continued as Section 269 (3) in Act 5 of 1898, and is the law at present. On the words of Section 536 it seems to be perfectly clear that where an offence, though triable with the aid of assessors, is in fact tried by a jury, the irregularity does not invalidate the trial, but the question is whether and how far it attracts the con-sequences of Section 418 (1) and affects the right of appeal? The Full Bench of the Bombay High Court held that the words in Section 418 (1) are themselves the dearest answer to the question; it was said that the words relate to what actually occurred, not to what should have occurred. Jen. kins C. J. said that the words "where the trial was by jury" mean "where the trial in fact was by jury", not "where the trial should have been by jury". The learned Chief Justice pointed out that an adoption of the rival view would lead to the result that a reversal of the conditions would leave an accused, who was wrongly tried with the aid of assessors, without any right of appeal, by which he doubtless meant appeal on facts. Candy J. pointed out that trial by jury is regarded as a "privilege", carrying with it certain "liabilities". If an offence triable by jury is tried with the aid of assessors, then, provided objection is taken before the Court records its finding, the trial will be invalid, but the converse is different. If the accused obtains the privilege to which strictly speaking he is not entitled, it is not presumed that he will take any objection. He has the chance of a verdict in his favour, a verdict which can only be upset under exceptional circumstances. If the verdict is against him, he cannot turn round and claim an appeal on matters of fact. Fulton J. urging the same considerations adds that it may seem hard that a prisoner should by reason of an irregularity in the mode of trial in the Court of Session be deprived of an appeal to the High Court on facts, but expresses the view that the grievance is more apparent than real, as under Section 439 the High Court has the widest powers of revision, and if it finds that owing to an irregularity in the Court below the prisoner is in danger of being wronged, it will exercise those powers even to the extent of reversing the verdict, a point on which it appears Candy J. expressly reserved his opinion. Crowe J. indicated his opinion that by virtue of Section 536 the trial should be held to be a valid trial by jury. Chandavarkar J. was inclined to think that the wording of Section 418 (1) as well as of Section 536 was capable of more than one meaning, equally favouring and not favouring a right of appeal on facts, and also thought that where the language used was capable of more than one construction, he should lean in favour of that which was beneficial to the accused. But he held that the whole scheme of the Code of Criminal Procedure was to treat trial by jury as a privilege, as valuable as, if not more valuable than, the right of appeal on facts. And he derived support for this view from the distinction expressly recognized in Section 536 between a case where an accused who ought to have been tried with the aid of assessors is tried by a jury, and a case where an accused who ought to have been tried by a jury is tried with the aid of assessors. In the former case, the Legislature says that the trial shall not be invalid, whereas in the latter, the trial shall not be invalid unless objection is taken to the trial before the Court records its finding.

Reading Section 418 with Section 536, it seems So me that the question as to whether an appeal will lie on a matter of fact as well as a matter of law, or only on a matter of law, depends upon the question as to whether the trial was in fact with the aid of assessors or was by jury, and not upon the question as to whether the offence of which the appellant has been convicted was of a class which ought to have been tried with the aid of assessors, or one of a class which ought to have been tried by a jury; so far as trial by jury is concerned, the trial will not be invalid, even if the accused is charged expressly with an offence triable with the aid of assessors and even if the objection to trial by jury was taken by the accused, but was overruled by the Sessions Judge on the erroneous ground that it was triable by jury. In such a case the accused if convicted cannot claim the right of appeal on matters of fact.

42. With due deference to the high authority of Jenkins C. J., I am unable to agree with him that the words "where the trial was by jury" in Section 418 (1) are so clear as to admit of one meaning only and that they must mean "where the trial in fact was by jury". In my opinion, these words are equally capable of another construction, meaning "where the trial was lawfully by jury". There is no reason to fear that the adoption of this meaning would produce the consequences apprehended by the learned Chief Justice that an accused who was wrongly tried with the aid of assessors would be thereby left without a right of appeal. The right of appeal is given by Section 410, and whatever be the meaning ascribed to the material words in Section 418 (1), that right will remain un-affected. The appeal, I imagine, would also be an appeal on both facts and law, because it could not be predicated of such a de facto trial with assessors that "the trial was lawfully by jury". It is further worthy of note that in such a case the accused would always have it within his power to render the trial invalid beyond cure by taking an objection at any time before the Court recorded its finding : see Sub-section (2) of Section 536. The distinction drawn in Section 536 between the two kinds of cases referred to in the two sub-sections thereof would from this point of view fully meet the objection raised by the learned Chief Justice.

43. Suppose in construing the meaning of the words "where the trial was by jury" in Section 418 (1) it is relevant to consider whether trial by jury was intended by the framers of the Code to be a "privilege", I venture to think it would be wrong to rely on the distinction between Sub-section (1) and sub-s, (2) of Section 536 for the purpose of drawing any such inference. It would indicate a privilege only if it could be shown that a de facto trial by jury, where de jure the trial should have been with the aid of assessors, would not impair the right of appeal on facts. But that would be assuming the very question which has to be answered. Section 536, as I understand it, merely cures an admitted irregularity in procedure, but even be it says nothing as to whether a trial which should have been a trial with the aid of assessors but was in fact held by a jury should be deemed to have been held as a valid trial by jury, or conversely whether a trial which should have been by jury but was actually held with the aid of assessors should be deemed a valid trial with assessors. In any case Section 536 does not and cannot affect the right of appeal which is governed by Section 418 (1) read with Section 410.