Jwala Prasad, J.:— The petitioner in this case has been convicted by the Sub-Deputy Magistrate of Chattra exercising Second Class powers under S. 352, I.P.C, and sentenced to pay a fine of Rs. 50. The conviction and sentence have been upheld in appeal by the First Class Magistrate of Hazaribagh.
2. The trying Magistrate imported into the judgment his knowledge gained by making inquiries out of Court without giving notice to the parties, as a result of which he says that he was perfectly “satisfied with the truth of the complainant's story in the main.” He also disbelieved the defence witness, Mahangu Mian, who swore in the Court that “he did not see any assault.” The Magistrate, says:
“I chanced to meet this witness outside the Court before his evidence was gone into and on making inquiries relating to the occurrence he told me that owing to market day there were too many customers at his shop and he did not care to see what was going on at the complainant's shop, etc.”
3. The appellate Court has condemned this procedure adopted by the Magistrate, but has upheld the conviction because it considered that the evidence of the defence witness, Mahangu Mian, was not worthy of credence irrespective of the irrelevant inquiry from the witness made by the Sub-Deputy Magistrate. The appellate Court however does not refer to the general inquiry made by the Magistrate as to the truth of the complainant's story outside the Court and without notice to the parties. There is no record of this general inquiry. He was also not competent to hold any inquiry into the case out of Court and to judge of the value of the evidence given in Court, except what was placed as legal evidence on the record. He became a witness out of Court and also to the facts that came to his knowledge at the extra-judicial inquiry. Under Section 556 of the Cr PC, he became personally interested in the result of the case however small that interest may be.
4. In the case of Queen-Empress v. Manikam(1) on a review of all the authorities on the point, it was held that where a Judge is the sole judge of law and fact in a case tried before himself, he cannot give evidence before himself or import matters in his judgment not stated on oath before the Court in the presence of the accused and that by so doing he made himself a witness in the case and had therefore rendered himself incompetent to try it. In that case, as in this, the appellate Court upheld the conviction on the ground that there was sufficient evidence on the record irrespective of the irrelevant matter introduced by the Magistrate. The conviction was set aside by the High Court in revision. The procedure of importing into a case his own knowledge of particular facts by a Judge was condemned in Hurpershad v. Sheo Dyal(2). This was a civil case, but the principle applies with greater force to a criminal trial. The same view has since then been taken in Girish Chunder Ghose v. Queen-Empress(3) and in Hari Kishore Mitra v. Abdul Baki Miah(4). In the notable case of Serjeant v. Dale(5) it was observed that:
“a Magistrate by making himself a witness has a legal interest in the decision of the case which disqualifies him from trying it no matter how small that interest may be.”
5. The Magistrate could not give an impartial consideration to the evidence on the record on account of the prejudice that may have existed in his mind after having held an inquiry out of Court. He had seen the witnesses, and the petitioner is entitled to have an impartial opinion of the evidence given by the witnesses, by the trying Court. The trial is vitiated by the inquiry held by the Magistrate. The appellate Court had not the advantage of seeing the witnesses and was in no better position than what we are in when hearing the case in revision. The petitioner is therefore prejudiced by the material irregularity in the trial of the case committed by the Magistrate. I would therefore set aside the conviction and direct that the petitioner be re-tried by another Magistrate.
6. Roe, J.:— I am not prepared to say that the appellate Court in this case was bound to refer the matter or re-trial but there is much to be said for the view that it would have been wiser to have done so. It is to be noted that in the case of Hurpershad v. Sheo Dayal, in which at p. 70 were contained the observations of their Lordships of the Judicial Committee on which most of the judgments in regard to Magistrates having knowledge of matters connected with the occurrence are based, their Lordships did not refer the matter for re-trial by another Court but decided the case upon its merits on that part of the record actually admissible in evidence.
7. In my view the matter falls rather within Section 167 of the Evidence Act than Section 556 of the Cr PC, as now amended. However as my learned brother is of opinion that the justice of the case requires a new trial. I concur in the order proposed.
V.S/R.K
8. Retrial ordered.