Authored By : William Comer Petheram, Robert Fulton Rampini

William Comer Petheram, C.J.

1. The Maharajah of Nattore and Rani Hemanta Kumari Devi arethe owners of forests in the Sub-Division of Tangail, which adjoin each other,and there have been for a long time disputes between them, and the persons whoclaim under them, as to the boundary line between their properties, which havefrom time to time led to the institution of criminal proceedings. On the 27thNovember 1893, Abdul Baki Miah, a servant of the Maharajah, laid a complaintbefore Babu Shib Chunder Nag, Sub-Divisional Magistrate of Tangail, chargingthe petitioners, who are tenants and servants of the Rani, with having, on the25th and 26th of the same month, been guilty of the offences of rioting,criminal trespass, mischief and theft. The complainant was examined on oathbefore the Sub-Divisional Magistrate, who on the same day made an order thatthere were questions of right of all sorts connected with the disputes, andthat the complainant should prove his case first on the 9th of December. On the11th of December the complainant petitioned the District Magistrate to removethe case from the file of Babu Shib Chunder Nag to that of some otherMagistrate, on the ground that that officer was inclined to view all casesinstituted by the Maharajahs men in the light of contested civil cases; and onthe 17th of January 1894 the District Magistrate, after a good deal ofcorrespondence and consideration, made over the case to Mr. Radice, anAssistant Magistrate, with orders that he should commence the trial de novo andon the spot. Mr. Radice reached the place on the 21st of January, and wasengaged on the 22nd, 23rd, 24th, 25th and 26th on a local enquiry, in the courseof which he made a good many notes. He has sent these notes to this Court undercover, and they indicate that he made on those days a very careful andconscientious investigation of the locality, such as would properly be made bya person whose duty it was to get at the facts with a view to lay them beforesome tribunal, but the information which he sought and obtained was not guardedby the safeguards by which statements on which a Judge or Magistrate exercisingjudicial functions can act must be guarded. On the 13th of March the accusedpersons were brought up before Mr. Radice, and on that and the next day, andagain on the 3rd of April, to which day the trial seems to have been adjourned,witnesses were examined for the prosecution, and two of the accused wereexamined by the Magistrate. The enquiry was then adjourned to the 18th, and Mr.Radice intimated that he would again visit the place on the 15th. On the 3rd anapplication was made to Mr. Radice on behalf of the accused, that all notes andmemoranda which he had made in the course of the investigation might be madepart of the record, and that the parties might have copies of them. A good dealof discussion took place on the subject, and on the 5th Mr. Radice made thisorder: "Grant copy of petition. As to copies of my notes I will passorders on the 16th. Put up them." On the 13th this rule was obtained fromthis Court, at the instance of the accused, to transfer the case from the fileof the Assistant Magistrate to that of a Magistrate exercising first classpowers, on the ground of the complexity of the case.

2. Mr. Radice has submitted an explanation to this Court, inwhich he tells us, amongst other things, that a transfer of the case from hisfile would cause great waste of time, and submits that a transfer is notnecessary. With reference to the local enquiry he says: "Mr. Earle, theMagistrate, refused to transfer this case from my file (I was then AssistantMagistrate with second class powers) to that of a Magistrate with first class powers.I had consulted Mr. Earle on the advisability of transferring this case fromray file, on the ground of my having conducted the local enquiry, and thateither side might desire to call me as a witness. It was decided that as I hadprepared full and careful notes of everything done at the local enquiry itwould, be sufficient if I were to put in these notes as evidence, and inviteboth parties to cross-examine me thereon." I have looked at some of theevidence which has been taken in the case, and I must say that if such anamount of evidence and such an elaborate local enquiry was necessary todetermine whether the timber was grown on the land of the Maharajah or on thatof the Rani, it seems unfortunate that the District Magistrate should haveremoved the case from the file of Babu Shib Chunder Nag for the reasonassigned, as if it is the case that the question between the zemindars is oneof such complication and difficulty, it could hardly be possible to convict theservants of either of them of crime, for taking, by the orders of his master,timber which his master claimed as his own; and at first I was disposed todischarge this rule, on the ground that the local enquiry was not necessary atall, and that it would be enough for us to send the case back to Mr. Radice,with a direction to try the question whether crime had been committed, and notto endeavour in such a case to decide questions of title or boundary. Onfurther consideration, however, I have come to the conclusion that we cannotallow Mr. Radice to proceed further with the trial of this case, and I havebeen forced to that conclusion mainly by what he has himself said in hisexplanation to this Court. Mr. Radice evidently considers the localinvestigation to have been of the greatest importance, and he feels, and nodoubt properly, that he is not in a position to act judicially upon theinformation which he obtained in the course of it; but he thinks, afterconsultation with the District Magistrate, that the difficulty caused by themode in which the local enquiry was conducted may be avoided by his putting inhis notes as evidence, and by his allowing either the prosecution or thedefence to cross-examine him upon them. It is in my opinion absolutelyimpossible for us to countenance anything of the kind. Such a proceeding is notcontemplated by any provision to be found in the written law of this country,and is one which I think must have a tendency to shake the confidence of thepeople in the administration of justice. It may be that there are cases inwhich it is desirable that a judicial officer should see the place in which anoccurrence which is the subject of a judicial investigation before him hastaken place, in order to enable him to understand the evidence which is laidbefore him, but when an officer visits a place for this purpose he should takecare that no information reaches him with reference to the occurrence which heis to investigate beyond what he acquires from the view of the place, and whenthere is a dispute as to the exact spot in which the occurrence is said to havetaken place, he will be wise to defer his visit to the spot until he has heardthe whole of the evidence, if under such circumstances he feels disposed tovisit it at all. There may also be another kind of local enquiry which anofficer may sometimes be called upon to hold I mean an enquiry which, for thesake of convenience, he holds at the place where the occurrence took place, andnot in his own Court; but such an enquiry, wherever it is held, is the trial ofthe case, and no evidence can be received at it, unless it is protected by allthe safeguards by which evidence on which a Judge may act is protected by law.It is evident that the local enquiry held by Mr. Radice in this case wassomething very different from either, of these, and was one in which heacquired a large amount of information with reference to the occurrence onwhich he had to arrive at a judicial determination, which, by reason of themode in which he had acquired it, he cannot properly and legally consider inarriving at his ultimate decision. I do not believe it would be possible forany man in coming to a conclusion of fact under such circumstances, to separatethe evidence which was properly before him from the information he had acquiredon the spot, so that he could say that his mind was not influenced by suchinformation, and when the officer tells us, as he does here, that he hasacquired such information, I think it is impossible for us to allow him toproceed with the trial. I wish to add that though Mr. Radice has fallen intothis error with reference to the nature of a local inquiry when held by ajudicial officer in the course of a judicial enquiry, his notes of the localenquiry and of the evidence taken before him indicate to my mind aconscientious desire on his part to spare himself no trouble, but to make theinvestigation entrusted to him as complete and at the same time as fair aspossible.

3. The rule will be made absolute to remove the case fromhis file to that of some Magistrate of the first class, but the selection ofthe particular officer must rest with the District Magistrate.

Robert Fulton Rampini, J.

4. I agree with the learned Chief Justice that this rulemust, for the reasons assigned by him, be made absolute. I further agree withhim in considering that the Assistant Magistrate who entered on the localenquiry made by him only under the orders of his superior officer, the DistrictMagistrate, has throughout acted conscientiously and exhibited an anxiousdesire to deal fairly with both parties to this litigation. But the fact of hishaving made the local enquiry he did make, in which he collected informationwith regard to the boundary between the Maharajahs and the Ranis propertiesand the cutting of the logs, and in which he actually searched for and foundsome of the logs claimed as stolen property, renders it impossible for him totry this case judicially. The suggestion which he makes after consultation withthe District Magistrate that he should enter the witness-box and be examinedand cross-examined by the pleaders of the parties is one which it isimpossible, and which it would be illegal, for him to carry out. It has beenfrequently ruled by this Court that when a Judge is the sole Judge, both of lawand fact, he cannot give evidence before himself, see Empress v. DonnellyI.L.R. 2 Cal. 405 [LQ/CalHC/1957/200] . Further I may point out that there is no section of theCriminal Procedure Code which authorises a Magistrate to make such a localinvestigation into a case tried by himself as was made by the AssistantMagistrate in this case. Section 148 provides that the District Magistrate orSub-Divisional Magistrate may direct some other Magistrate subordinate to him,to make a local enquiry in a case of a dispute likely to cause a breach of thepeace regarding tangible Immovable property, and that the report of suchMagistrate may be read as evidence in the case. Section 202 authorises aMagistrate when, after examining a complainant, he sees reason to distrust thetruth of the complaint to postpone issuing process against the accused, andeither to enquire into the case himself, or direct a previous localinvestigation to be made by any officer subordinate to him, or by a Policeofficer, or by such other person, not being a Magistrate or Police officer, ashe sees fit. Section 293 directs that in the course of a sessions trial, whenit is considered desirable that the jury or assessors should view the placewhere the offence is alleged to have been committed, they may be conducted tothe place under the care of an officer of the Court, and when the view isfinished they must immediately be conducted back into Court, without beingallowed to speak to anyone. These are the only sections of the CriminalProcedure Code which allow of local investigations and local inspections, andit is clear that the sort of local enquiry made by the Assistant Magistrate inthis case was not one contemplated on authorised by any of them. It is verydesirable. I think, that Magistrates should bear these sections in mind whenpressed, as they constantly are to make local investigations into cases comingjudicially before them.

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Hari Kishore Mitra and Ors.vs. Abdul Baki Miah (29.05.1894 -CALHC)