1. This is a rule calling on the other side to show cause why the convictions of, and sentences passed on, the applicants, should not be set aside, on the ground that the case should not have been tried by the District Magistrate of Backergunge, as he was personally interested in the case.
2. The applicants have been convicted under ss 150 and 143, Penal Code, of employing armed men for the purpose of taking part in an unlawful assembly.
3. The case appears to have been instituted by the District Magistrate of Backergunge of his own motion under the provisions of Section 191, Clause (c).
4. The facts which gave rise to the case are described by the Magistrate in his judgment as follows: "The evidence of the Inspector of Police, Patur Khalo, shows that on the 19th instant accused Girish Chunder Ghose (hereafter styled accused No. 1) filed before him at Golachapa thannah a petition (Exhibit P 1), in which it was alleged that Mohini Baboo had collected some lathials, but as from the demeanour of the accused it was suspected that he himself had lathials assembled, he was told that no action would be taken on the petition, which was brought to my notice at the time. Golachapa thannah, by river, for any large boat, is about a day's journey from Kali chur, but a small boat can get through the Ulania khal and thus reach the chur in five or six hours. I had the Police launch with me. On the morning of 20th the launch was sent round to the Gopalai river, and with the Inspector, the Magistrate's peshkar, and one or two others I walked to Ulania, got on the launch, and crossed 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 the katcheries of both parties). The Inspector stopped, and he (witness Fazeemuddin) then said Surendra Baboo's lathials were surrounding his house.
The Inspector went on towards Mohini Baboo's katchery. The peshkar, the serang, and a khalasi of the steamer, Tarumuddin, and myself went towards the north.
The evidence of Tarumuddin, the serang and khalasi, shows that they got ahead of others, and when they had crossed a strip of jungle near Tarumuddin's house they saw a band of lathials armed with spears and other weapons in and around Tarumuddin's bari, and some of them engaged in pulling down his stack of paddy.
The cry was raised of 'Police.' The lathials fled, were pursued, and one of them (witness Borandi Rari) was caught armed with a 'chawal,' a formidable instrument with a long bamboo haft and a 3-pronged iron head, each prong being barbed.
Subsequently a constable, while looking for lathials on the island, came across one Dagu (witness) in some jungle, chased him into a house and arrested him, and subsequently brought him before me the next day.
After the chase of the boat the Inspector and others returned with me in the launch to Golachapa.
5. The following passages in the depositions of the witnesses in the case show what an active part the District Magistrate took in initiating the proceedings and in collecting evidence against the accused:
Shambhu Nath Aitch, Inspector: "I know the defendant Girish Chunder Ghose. He filed Exhibit P1 before me at Golachapa on 19th instant, and said that Mohini Baboo had many people assembled unlawfully in Kali chur and that they were seizing the tenants. I informed the District Magistrate, who was at the place, and afterwards the informant was told that no action would be taken on this petition, as it was too vague. It was suspected from his demeanour he had people of is own assembled, and had brought the information with the intention of deceiving. He was dismissed from Golachapa about 3 P.M. Next morning I started with the Magistrate and peshkar on pretence of 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 or 11 a.m. The Magistrate ordered me to go to Mohini Baboo's katchery, and himself with others went with the informant. Then I came off to the launch with Girish Ghose. On arriving on the launch I found a constable, who brought in the man Borandi, with a chawal and with instructions to follow with the launch as the Magistrate was in pursuit of the lathials. I went with the launch around the north of the island, and after going a long way found the Magistrate and others, and received orders to catch a boat in which lathials had gone off to another chur." Tarumuddin cultivator: "A short time after Tounatullah had left his bari, some 10 or 12 lathials came from the south and surrounded my bari. They had lathies, dal, sulfi, leza, chawal. Seeing them I ran off to the west to look myself for the constable, and as I was running I saw the launch at the bank and the Bara Daroga seized me. I was asked where Mohini Baboo's katchery was, and then questioned about lathials. I said I could point them out near my house. The sahib and people with him ran with me There was a cry of 'Sahib has come,' and the lathials fled east. We ran after them." Gour Kissor Chatterjee, peshkar, says: "On Tuesday I came with the Magistrate to Kali chur on the launch. After landing we were going towards Mohini Baboo's katchery, when we found one Tarumuddin running, and the Inspector caught him, thinking he was a lathial. He told us, when questioned, that Surendra Baboo's lathials were at his house; On that the Inspector was sent by the Magistrate to the katchery of Mohini Baboo and himself with me. After we had gone some distance a man seeing us turned. As we cried 'seize' he fled at full speed, and after him the serang, khalasi, and Tarumuddin got ahead. I was tired out, and so fell behind. The Magistrate was behind me. Looking round I saw some 8 or 9 lathials with lathies, spears, etc., standing facing us some 300 cubits to the south. I did not see the Magistrate then, so I turned back to look for him, and when I got to Tarumuddin's bari, heard the Magistrate had chased the lathials towards the east. Leaving Borandi in charge of Tarumuddin's brother, I followed the Magistrate to the east, and on the way met Hari Singh, constable. After going a long way I joined the Magistrate, and we tracked the lathials and searched for them in jungle and barn. At last when we got to the bank of the river we heard the lathials were in a 'chatra.' Then we went to the bari of Samaruddin Mirdha of Surendra Baboo on way to the chatra, The Magistrate searched there, and after that when we got into the math south of it we saw a jungle south of the math, and men moving about in that jungle. Suspecting the lathials were there, we ran to it and found the lathials had got on a boat from the jungle, and running through the jungle to the boat I saw a boat going off." Hamid Ali, serang of Police launch, says: "On Tuesday I brought the Magistrate to this khal here on Kali chur. I landed with the Magistrate and others, and afterwards ran with the Magistrate to the north. I and Meheruddin khalasi got ahead with this man (Tarumuddin). Tarumuddin was then with us. We ran 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 his stack. There was then a cry of 'police,' and then seeing us the lathials fled to 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 on him and took the instrument from him, and held him and produced him before the peshkar. Then we followed to where the sahib was to the south, in which direction the other lathials had fled, and he then sent me to bring the launch round to that side of the island. I brought the launch round, and the Magistrate got on it. We chased them...a boat to Sir chur.
6. From these passages from the Magistrate's judgment and the evidence it appears to us to be clear that the present proceedings were initiated by the Magistrate; that he took an active part in causing the dispersion of the unlawful assembly which was found committing mischief on the homestead of the witness Tarumuddin; that he pursued and directed the pursuit of the members of that assembly; and that subsequently he took pains to collect the 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 Magistrate should not have tried the case himself. In the first place, Section 555, Criminal Procedure Code, provides that no Magistrate, except with the permission of the Court to which an appeal lies from his Court, shall try any case to or in which he is a party, or personally interested.
8. Now, in this case it is clear that the District Magistrate from first to last was the prosecutor. He initiated and directed the whole proceedings. He may also, we think, be said to have been personally interested in them, for the word" personally" in Section 555 does not, we think, mean merely "privately interested" or "interested as a private individual," but includes such an interest as the District Magistrate must in this case have had in the conviction of the accused [see the case of In re Het Lall Roy 22 W.R. Cr. 75].
9. Secondly, the Magistrate in the passage from his judgment, which has been read, and in other passages--for instance, in those in which he describes the locality in which the unlawful assembly took place--has described matter which came under his own observation. He therefore has embodied in his judgment matters which, if relevant, should have been deposed to by him on oath in the witness-box. Now, it is clear that no Magistrate can try a case in which he is himself a witness. The rule laid down in Empress v. Donnelly I.L.R. 2 Cal. 405 and many other rulings is that a Magistrate cannot himself 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 only witnessed the facts deposed to by the witnesses from a distance, and it has been said that his evidence could not have materially affected the result of the case. But this appears to us to be immaterial. The accused are entitled to have nothing stated against them in the judgment which was not stated on oath in their presence, and which they had no opportunity of testing by cross-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 the case the Magistrate was disqualified from trying it himself, and we accordingly set aside the convictions and sentences and direct that the accused be re-tried by some other Magistrate of the Backergunge district.
11. We would add that in passing this order we wish to cast no reflections on the District Magistrate, who appears to have been actuated by a zealous desire to preserve the peace of his district. But, as pointed out by MELLOR and Lush, JJ., in the case of Serjeant v. Dale L.R. 2 R.B.D. 558 when laying down the rule that if a Magistrate has any legal interest in the decision of a case, he is disqualified from trying it, no matter how small that interest may be:
"The law in laying down this strict rule had regard not so much perhaps to the motive which might be supposed to bias the Judge, as to the susceptibilities of the litigant parties. One important object at all events is to clear away everything which might engender suspicion and distrust of the tribunal, and to promote the feeling of confidence in the administration of justice which is so essential to social order and security."