Gangeshwar Prasad, J. - (1.)Against the Applicant of this revision application a conditional order Under Sec. 133 Code of Criminal Procedure was passed by the SDM Phulpur, Allahabad, requiring him to remove a construction alleged to have been made by him on a public way. The Applicant denied that there was any public way at the place where he had made the construction complained of and stated that there was no obstruction to the public on account of it. In the alternative the Applicant claimed the appointment of a jury to try the question whether the order passed by the Magistrate was reasonable and proper. The learned Magistrate did not feel satisfied that there was any reliable evidence in support of the denial of the existence of a public right of way on the land in dispute and he appointed a jury of five persons including the foreman under Sec. 138 Code of Criminal Procedure. When the matter went to the jury a date was fixed for local inspection and information of the date was duly given to all the jurors. Only four of the jurors were, however, present at the time of the local inspection and the fifth juror was absent and took no part in the proceeding. Three of the jurors reported that the construction in question had been made on a public way but it caused no obstruction to the public while the foreman of the jury reported that the construction did cause obstruction and should be removed. On receipt of the reports the learned Magistrate came to the conclusion that the case was one in which he should proceed under Sec. 141 Code of Criminal Procedure. His order shows that he thought that only a unanimous verdict could be given by the jury and since such a verdict had not been given he should act under Sec. 141 Code of Criminal Procedure. Strangely enough, however, the Magistrate, while acting under Sec. 141 Code of Criminal Procedure, took into account the report of the majority of jurors to the effect that the construction was on a public way and agreed with the foreman of the jury that the construction obstructed a public way and on that basis he ordered the Applicant to remove the construction within fifteen days from the date of the order. Against this order of the Magistrate the Applicant filed a revision before the II Temporary Civil and Sessions Judge of Allahabad. The learned Judge held that since all the jurors had not participated in the deliberations the Magistrate rightly proceeded under Sec. 141 Code of Criminal Procedure and he further held that the Magistrate was competent to consider the opinions of the jurors and the foreman. The revision was accordingly rejected by him. The Applicant has now come up in revision to this Court.
(2.)It is not disputed that the law does not require that the verdict of the jury should be unanimous. The question to be considered is whether the opinion of the majority of the jury can be accepted by a Magistrate, if it is shown that one of the jurors had not taken part in the proceeding before the jury. Sec. 138 Code of Criminal Procedure does not lay down the procedure in relation to the proceeding before the jury but it seems obvious that it contemplates the participation of all the members of the jury and a verdict of the jury after all the jurors have participated in the deliberations. If a member of the jury abstains from functioning as a juror and takes no part in the deliberations the verdict given by the remaining jurors cannot be said to be a verdict of the jury. This question has been considered in a number of cases. In the matter of Durga Charan Das v/s. Sashi Bhusan Guho, ILR 13 Cal. 275 is a case in which the Calcutta High Court held that when a majority of the jury appointed under the provisions of Sec. 133 Code of Criminal Procedure do not act, the Magistrate cannot proceed under that Sec. upon a report submitted by the majority. In Queen Empress v/s. Kedar Nath, ILR 23 All. 159 a Division Bench of this Court observed as follows:
We may add that although the verdict of the majority of the jury must be accepted by the Magistrate, this means that the jury should have heard together and tried the matter which had been referred to them; the decision of three of them acting in the absence of the other two is wholly invalid.

It is true that in the above case the two jurors who did not act had moved for adjournment of the proceeding but that, in my opinion, makes no difference and the principle laid down in the case is clearly applicable to the situation in the instant case. In Rajaram Singh v/s. Keshan Rai : AIR 1942 Pat. 468 a learned Judge of the Patna High Court held:

The verdict of four out of five jurors is not the verdict of the jury. The jury by law consisted of five persons and although it is not necessary that the jurors shall return a unanimous verdict, they must all take part in the deliberations of the jury and unless they do so, there can be no verdict of the jury. The view expressed in the above case was followed in a latter case of the same Court in Jangal Prasad v/s. Rameswar Prasad : AIR 1960 Pat. 539.

(3.)It, therefore, appears to be well settled that the verdict of the majority of jurors can be accepted only when all the jurors have taken part in the proceeding before the jury but if any one of them has not acted as juror the report made by the remaining jurors cannot be regarded as a verdict of the jury and it has to be totally ignored by the Magistrate.