Maclean, C.J:— I should have been much better satisfied in this case if I could have arrived at the conclusion that the rule complained of was ultra vires. To my mind it is a very unsatisfactory and equally undesirable rule. But we must be careful not to allow the objection to the rule itself to pre-judicially affect our judgment as to whether or not it is ultra vires, which is the only point referred to us. The question submitted is whether Rule 6 of the rules framed by the Government of Bengal for the guidance of Benches of Magistrates is authorized by the Code and consistent with it. That is the only question we have been asked to decide: it is one purely of law and depends upon the construction of sec. 16 of the Code of Criminal Procedure. That section enables the Local Government to make rules consistent with the Code respecting certain subjects which are specified and, amongst other subjects, is the “mode of settling differences of opinion which may arise between the Magistrates in Session.” In pursuance of that power, the Government of Bengal passed Rule 6 which runs in these terms: “Each member of the Bench shall have a voice in deciding as to the admissibility of evidence and in the finding and sentence. In a Bench of three or other un-even number of members, the opinion of the majority shall prevail. When the members are even, the Chairman shall have a casting vote.” This is not very happily expressed: it means, I presume, that the view of the Chairman shall prevail. It is said that the latter part of the rule is not consistent with the Code and if it is not consistent with the Code, then it is ultra vires. The question then resolves itself into this: Is the rule consistent with the Code? There is nothing in the Code which directly precludes such a rule: prima facie then it is consistent with the Code. But it is said that it is inconsistent with sec. 429. That section provides for the case of a difference of judicial opinion between two Judges of this Court, in which event it is provided that the case is to be sent to a third Judge. It is said that indicates that where there is a difference of opinion between two Magistrates, the same procedure ought to be followed, and that a rule prescribing a different procedure is not consistent with the Code. If this argument were to prevail any rule on the subject which did not provide for the procedure of sec. 429 would be ultra vires. But the Act does not say that. The legislature apparently thought it desirable that, in cases of differences of opinion between two Judges of this Court, which practically is the final Court of criminal appeal for the Province, the procedure should be clearly defined in the Code. But it does not seem to follow from that because the Local Government has not thought fit to make a rule in the terms of that section, they can be said to have made a rule inconsistent with the Code. If the Legislature had Intended that the same rule as to differing Judges of this Court was to apply to differing Magistrates they would probably have said so, as they easily could have done, and not have left the matter to be dealt with by rules to be made by the Local Government. However much I may disapprove of the rule, I think we should be straining the language of the section if we were to say that, it is inconsistent with the Code. For my own part, I think it would be highly desirable that this rule should be abrogated and a fresh one framed. But that is not a matter for us, it is a matter for the Government. As regards the cases cited in the Reference, no reasons, so far as the construction of the Code goes, are assigned for the conclusions at which the learned Judges arrived. In the case of Asimuddi v. Janulln the learned Judges expressed no opinion upon the legality of the rule. One of those Judges was one of the present referring Judges. Agreeing with the view expressed by the referring Judges, I answer the question in the affirmative. The proper course is to send the case back to the referring Judges to deal with as they think proper.

Ghose, J.:— I regret very much that I am unable to agree with my Lord in the opinion he has expressed upon the reference before us. Rule No. 6 referred to, is a rule framed by the Government of Bengal under the powers conferred upon them by sec. 16 of the Code of Criminal Procedure. That section gives the Local Government power to make rules consistent with the Code, for the guidance of Magistrates' Benches respecting (a) the classes of cases to be tried, (b) the times and places of sitting, (c) the constitution of the Bench for conducting trials, and (d) “the mode of settling differences of opinion which may arise between the Magistrates in Session.” What is the meaning of the words, which I have just read “the mode of settling differences of opinion?” Do these words simply indicate the machinery by which a difference of opinion when arising may be settled or do they comprehend the idea of conferring upon any individual member of the Bench any extraordinary power for the purpose of settling such difference? It will be observed that the rules which the Local Government is authorized to make are simply for the guidance of the Benches, and the clauses that precede the cl. (d) indicate that they refer to purely administrative matters; and the question is whether it was the intention of the legislature while laying down the said clause, to depart, as it were, from the general scope of the section, so as to authorize the Government to do an act which is far from being administrative in character. I think not. Secs. 429 and 378 of the Code though they are applicable to the High Court only, suggest what ought to be done in cases of difference of opinion arising between two members composing a tribunal; and if the Local Government had made a rule in the same lines, and something to this effect: “In case of difference of opinion between two members composing a Bench, the case should be referred by the Bench to a third Magistrate,” it would be a rule quite consistent with the Code, and the scope of sec. 16, for the word “mode,” as used in cl. (d) of the section, to my mind, simply indicates the machinery by which a difference, when it arises, may be settled. But I do not think it was ever contemplated that, for the purpose of settling such difference in a given case, the Local Government might adopt the “mode” (if the word is at all applicable) of conferring extraordinary powers, or rather double power, upon an individual member of the Bench. Under secs. 12 and 14 of the Code, the Local Government may, no doubt, confer upon any person appointed as Magistrate any powers which a Magistrate, under the Code, is competent to exercise; and it may also confer such powers in respect to cases generally or any particular case, or to a particular class of cases: but this is very different from providing that, in the event of the Magistrate so empowered being member of a Bench, he should, in case of difference of opinion, exercise, not the ordinary powers, but extraordinary powers. Sec. 15 of the Code lays down: “The Local Government may direct any two or more Magistrates in any place outside the Presidency towns to sit together as a Bench and may, by order, invest such Bench with any of the powers conferred or conferable by or under this Code on a Magistrate of the first, second or third class, and direct it to exercise such powers in such cases, or such classes of cases only, and within such local limits as the Local Government thinks fit.” The Local Government, under this last-mentioned section, may confer upon the Bench any powers, conferable under this Code, that it may please, but not any extraordinary power upon any individual member of the Bench, for the purpose of disposing of any particular case in case of difference of opinion arising between them;—and that is just what the Local Government has done by framing Rule 6. For these reasons, I should, with all deference, however, to the opinion that has been expressed by the learned Chief Justice, hold that the rule in question is not consistent with the Code or the spirit thereof and that it is ultra vires.

Rampini, J.:— I agree with the judgment delivered by my Lord the Chief Justice, and would answer in the affirmative the question which has been propounded for our consideration by the referring Judges.

It seems to me that Rule 6 of the rules framed by the Local Government for the guidance of Magistrates' Benches is authorised by the Code and is consistent with it. In my opinion the present rule is quite within the powers conferred upon the Local Government by Bee. 16, cl. (d), of the Code, and is covered by the authority given by that clause.

Further, it does not appear to me that the rule is inconsistent with the Code. I am free to admit that it is one which I do not approve of, and that I would be glad to see reconsidered by the Local Government. But as far as I can see, it is a perfectly legal rule and one which the Local Government had full authority to frame. I do not think we are called upon to decide whether the rule is an arbitrary one or one opposed to natural justice; but I may observe that the rule is very similar to that laid down in cl. 36 of the Letters Patent of 1865 and to Rule 55 of the rules of the Original Side of this Court, which is still in force. I should be sorry to think that this rule is arbitrary or inconsistent with natural justice.

I accordingly agree in remitting the case to the referring Judges for disposal upon the merits.

Sale, J.:— I also agree with the Chief Justice that the rule complained of is not Illegal and I desire to add only a very few words. It has been argued that the rule contravenes the spirit and intention of the Criminal Procedure Code, if it is not opposed to its express language. I may say at once that if I thought the rule was contrary to natural justice—and that is what has been alleged—I should feel no difficulty in holding that it was opposed to the purpose and spirit of the Code and was therefore illegal, for the object of the Code is, I suppose, to secure justice and no rule which is contrary to natural justice could be consistent with that object. But there is nothing necessarily contrary to natural justice in a rule which provides that, in the case of a Bench of two Magistrates, the opinion of the Chairman is to prevail. The Chairman of a Bench, it may be reasonably assumed, is the person who is thought to be, by qualifications and experience, best fitted for that position. It is right, therefore, that his opinion should carry more weight than the opinion of a Magistrate who has less experience and has inferior qualifications. A rule of this kind differs, in my opinion, in degree only and not in principle from the rule which provides that the opinion of two Magistrates is to be preferred to the opinion of one. But though the rule cannot be said to be illegal, I agree that it is unsuited to the administration of criminal justice and the reason is that it is often difficult to select the right person as Chairman. A rule which is theoretically sound may be undesirable and may lead to abuses in its practical working. That, I think, is the case here. Where the administration of criminal justice is dealt with by a Bench of Magistrates, it is a better and safer rule that the opinion of a majority should determine the decision of the Court. I agree, therefore, with the recommendation that the rule complained of should either be altered or expunged.

Pratt, J.:— I agree with Mr. Justice Ghose and adhere to the opinion expressed by me in my judgment in the case of Henry Wakefield v. Haran Sardar.

The Code of Criminal Procedure expressly provides for the case of a difference of opinion between two Judges constituting a Bench of the High Court, by directing a reference to a third Judge; and it does not allow of either Judge having a casting vote. I think the rule under discussion is inconsistent with the principle underlying that enactment, and, therefore, is not such as is contemplated by sec. 16.

Moreover, the rule gives a single Magistrate the power and authority of two Magistrates, which is not authorised by the Code.

When upon a difference of opinion between the two presiding Magistrates of a Bench the accused is condemned to imprisonment without a right of appeal, merely upon the casting vote of one Magistrate it seems to me that the question of the prisoner's guilt is made to depend upon chance, and that the legislature could not have intended such an arbitrary and unjust rule to have the force of law.

This view seems to have commended itself to the Governments of Bombay and of the United Provinces. In the former Presidency the rules provide for a reference to a third Magistrate, and, in the latter, the rule is that the accused should be given the benefit of the doubt.

[Reporter's Note.— Since the decision of the Full Bench, the rule which is the subject-matter of the decision has been superseded in Bengal by the Notification, dated the 30th April 1906, No. 286 J.D, published in the Calcutta Gazette of May 2, 1906, Part I, p. 980. The old rule however still remains in force in the Province of Eastern Bengal and Assam.

In this very case, as may have been noticed, an objection was taken before the Full Bench that the old rule does not apply to the new Province. This objection the Full Bench declined to consider. It was taken again before Mitra and Geidt, JJ., when the case came back for disposal before them. Their Lordships held that the provisions of the Bengal and Assam Laws Act, VII of 1905, are wide enough to make these rules applicable to that Province.]

N.G