Authored By : Trevelyan, Robert Fulton Rampini

Trevelyan and Robert Fulton Rampini, JJ.

1. This is a rule calling on the other side to show causewhy the convictions of, and sentences passed on, the applicants, should not beset aside, on the ground that the case should not have been tried by theDistrict Magistrate of Backergunge, as he was personally interested in thecase.

2. The applicants have been convicted under sections 150 and143, Penal Code, of employing armed men for the purpose of taking part in anunlawful assembly.

3. The case appears to have been instituted by the DistrictMagistrate of Backergunge of his own motion under the provisions of Section191, Clause (c).

4. The facts which gave rise to the case are described bythe Magistrate in his judgment as follows: "The evidence of the Inspectorof Police, Patur Khalo, shows that on the 19th instant accused Girish ChunderGhose (hereafter styled accused No. 1) filed before him at Golachapa thannah apetition (Exhibit P 1), in which it was alleged that Mohini Baboo had collectedsome lathials, but as from the demeanour of the accused it was suspected thathe himself had lathials assembled, he was told that no action would be taken onthe petition, which was brought to my notice at the time. Golachapa thannah, byriver, for any large boat, is about a days journey from Kali chur, but a smallboat can get through the Ulania khal and thus reach the chur in five or sixhours. I had the Police launch with me. On the morning of 20th the launch wassent round to the Gopalai river, and with the Inspector, the Magistratespeshkar, and one or two others I walked to Ulania, got on the launch, andcrossed the Kajal river to chur Kali. Thus the visit was entirely unexpected.When we landed a man was seen running towards the south (in direction of thekatcheries of both parties). The Inspector stopped, and he (witnessFazeemuddin) then said Surendra Baboos lathials were surrounding his house.

The Inspector went on towards Mohini Baboos katchery. Thepeshkar, the serang, and a khalasi of the steamer, Tarumuddin, and myself wenttowards the north.

The evidence of Tarumuddin, the serang and khalasi, showsthat they got ahead of others, and when they had crossed a strip of jungle nearTarumuddins house they saw a band of lathials armed with spears and otherweapons in and around Tarumuddins bari, and some of them engaged in pullingdown his stack of paddy.

The cry was raised of Police. The lathials fled, werepursued, and one of them (witness Borandi Rari) was caught armed with achawal, a formidable instrument with a long bamboo haft and a 3-pronged ironhead, each prong being barbed.

Subsequently a constable, while looking for lathials on theisland, came across one Dagu (witness) in some jungle, chased him into a houseand arrested him, and subsequently brought him before me the next day.

After the chase of the boat the Inspector and othersreturned with me in the launch to Golachapa.

5. The following passages in the depositions of thewitnesses in the case show what an active part the District Magistrate took ininitiating the proceedings and in collecting evidence against the accused:

Shambhu Nath Aitch, Inspector: "I know the defendantGirish Chunder Ghose. He filed Exhibit P1 before me at Golachapa on 19thinstant, and said that Mohini Baboo had many people assembled unlawfully inKali chur and that they were seizing the tenants. I informed the DistrictMagistrate, who was at the place, and afterwards the informant was told that noaction would be taken on this petition, as it was too vague. It was suspectedfrom his demeanour he had people of is own assembled, and had brought theinformation with the intention of deceiving. He was dismissed from Golachapaabout 3 P.M. Next morning I started with the Magistrate and peshkar on pretenceof seeing the road to Ulania. We walked to Ulania, and there got on the launch,which had been sent round, and crossed to Kali chur, where we landed at 10 or11 a.m. The Magistrate ordered me to go to Mohini Baboos katchery, and himselfwith others went with the informant. Then I came off to the launch with GirishGhose. On arriving on the launch I found a constable, who brought in the manBorandi, with a chawal and with instructions to follow with the launch as theMagistrate was in pursuit of the lathials. I went with the launch around thenorth of the island, and after going a long way found the Magistrate andothers, and received orders to catch a boat in which lathials had gone off toanother chur." Tarumuddin cultivator: "A short time after Tounatullahhad left his bari, some 10 or 12 lathials came from the south and surrounded mybari. They had lathies, dal, sulfi, leza, chawal. Seeing them I ran off to thewest to look myself for the constable, and as I was running I saw the launch atthe bank and the Bara Daroga seized me. I was asked where Mohini Babooskatchery was, and then questioned about lathials. I said I could point them outnear my house. The sahib and people with him ran with me There was a cry ofSahib has come, and the lathials fled east. We ran after them." GourKissor Chatterjee, peshkar, says: "On Tuesday I came with the Magistrateto Kali chur on the launch. After landing we were going towards Mohini Babooskatchery, when we found one Tarumuddin running, and the Inspector caught him,thinking he was a lathial. He told us, when questioned, that Surendra Babooslathials were at his house; On that the Inspector was sent by the Magistrate tothe katchery of Mohini Baboo and himself with me. After we had gone somedistance a man seeing us turned. As we cried seize he fled at full speed, andafter him the serang, khalasi, and Tarumuddin got ahead. I was tired out, andso fell behind. The Magistrate was behind me. Looking round I saw some 8 or 9lathials with lathies, spears, etc., standing facing us some 300 cubits to thesouth. I did not see the Magistrate then, so I turned back to look for him, andwhen I got to Tarumuddins bari, heard the Magistrate had chased the lathialstowards the east. Leaving Borandi in charge of Tarumuddins brother, I followedthe Magistrate to the east, and on the way met Hari Singh, constable. Aftergoing a long way I joined the Magistrate, and we tracked the lathials andsearched for them in jungle and barn. At last when we got to the bank of theriver we heard the lathials were in a chatra. Then we went to the bari ofSamaruddin Mirdha of Surendra Baboo on way to the chatra, The Magistratesearched there, and after that when we got into the math south of it we saw ajungle south of the math, and men moving about in that jungle. Suspecting thelathials were there, we ran to it and found the lathials had got on a boat fromthe jungle, and running through the jungle to the boat I saw a boat goingoff." Hamid Ali, serang of Police launch, says: "On Tuesday I broughtthe Magistrate to this khal here on Kali chur. I landed with the Magistrate andothers, and afterwards ran with the Magistrate to the north. I and Meheruddinkhalasi got ahead with this man (Tarumuddin). Tarumuddin was then with us. Weran on to the darra of the bari and saw some 10 or 12 men with lathies, dal,sulfi, in and around his bari, and some of them throwing down paddy from hisstack. There was then a cry of police, and then seeing us the lathials fledto the east with their weapons. We followed some 5 or 6 kanis through the math,and Tarumuddin, who got some 10 cubits ahead, got hold of one of the lathials.That man lifted up a chawal (this one) to strike him. We other two then fell onhim and took the instrument from him, and held him and produced him before thepeshkar. Then we followed to where the sahib was to the south, in whichdirection the other lathials had fled, and he then sent me to bring the launchround to that side of the island. I brought the launch round, and theMagistrate got on it. We chased them...a boat to Sir chur.

6. From these passages from the Magistrates judgment andthe evidence it appears to us to be clear that the present proceedings wereinitiated by the Magistrate; that he took an active part in causing thedispersion of the unlawful assembly which was found committing mischief on thehomestead of the witness Tarumuddin; that he pursued and directed the pursuitof the members of that assembly; and that subsequently he took pains to collectthe evidence showing the connection of the applicants with that unlawful assembly,and the keeping of armed men, on which they were afterwards convicted.

7. We think that in these circumstances the Magistrateshould not have tried the case himself. In the first place, Section 555,Criminal Procedure Code, provides that no Magistrate, except with thepermission of the Court to which an appeal lies from his Court, shall try anycase to or in which he is a party, or personally interested.

8. Now, in this case it is clear that the DistrictMagistrate from first to last was the prosecutor. He initiated and directed thewhole proceedings. He may also, we think, be said to have been personallyinterested in them, for the word" personally" in Section 555 doesnot, we think, mean merely "privately interested" or "interestedas a private individual," but includes such an interest as the DistrictMagistrate must in this case have had in the conviction of the accused [see thecase of In re Het Lall Roy 22 W.R. Cr. 75].

9. Secondly, the Magistrate in the passage from hisjudgment, which has been read, and in other passages--for instance, in those inwhich he describes the locality in which the unlawful assembly took place--hasdescribed matter which came under his own observation. He therefore hasembodied in his judgment matters which, if relevant, should have been deposedto by him on oath in the witness-box. Now, it is clear that no Magistrate cantry a case in which he is himself a witness. The rule laid down in Empress v.Donnelly I.L.R. Cal. 405 and many other rulings is that a Magistrate cannothimself be a witness in a case in which he is the sole judge of law and fact.The Magistrate in a letter which has been read to us states that he onlywitnessed the facts deposed to by the witnesses from a distance, and it hasbeen said that his evidence could not have materially affected the result ofthe case. But this appears to us to be immaterial. The accused are entitled tohave nothing stated against them in the judgment which was not stated on oathin their presence, and which they had no opportunity of testing bycross-examination and of rebutting [see the case of In re Hurro Chunder Paul(20 W.R. Cr. 76)].

10. We therefore consider that in the circumstances of thecase the Magistrate was disqualified from trying it himself, and we accordinglyset aside the convictions and sentences and direct that the accused be re-triedby some other Magistrate of the Backergunge district.

11. We would add that in passing this order we wish to castno reflections on the District Magistrate, who appears to have been actuated bya zealous desire to preserve the peace of his district. But, as pointed out byMELLOR and Lush, JJ., in the case of Serjeant v. Dale L.R. 2 R.B.D. 558 whenlaying down the rule that if a Magistrate has any legal interest in the decisionof a case, he is disqualified from trying it, no matter how small that interestmay be: "The law in laying down this strict rule had regard not so muchperhaps to the motive which might be supposed to bias the Judge, as to thesusceptibilities of the litigant parties. One important object at all events isto clear away everything which might engender suspicion and distrust of thetribunal, and to promote the feeling of confidence in the administration ofjustice which is so essential to social order and security."

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Girish Chunder Ghose and Ors. vs. The Queen-Empress(24.03.1893 - CALHC)