1. The Maharajah of Nattore and Rani Hemanta Kumari Devi are the 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 who claim under them, as to the boundary line between their properties, which have from time to time led to the institution of criminal proceedings. On the 27th November 1893, Abdul Baki Miah, a servant of the Maharajah, laid a complaint before Babu Shib Chunder Nag, Sub-Divisional Magistrate of Tangail, charging the petitioners, who are tenants and servants of the Rani, with having, on the 25th and 26th of the same month, been guilty of the offences of rioting, criminal trespass, mischief and theft. The complainant was examined on oath before the Sub-Divisional Magistrate, who on the same day made an order that there were questions of right of all sorts connected with the disputes, and that the complainant should prove his case first on the 9th of December. On the 11th of December the complainant petitioned the District Magistrate to remove the case from the file of Babu Shib Chunder Nag to that of some other Magistrate, on the ground that that officer was inclined to view all cases instituted by the Maharajah's men in the light of contested civil cases; and on the 17th of January 1894 the District Magistrate, after a good deal of correspondence and consideration, made over the case to Mr. Radice, an Assistant Magistrate, with orders that he should commence the trial de novo and on the spot. Mr. Radice reached the place on the 21st of January, and was engaged on the 22nd, 23rd, 24th, 25th and 26th on a local enquiry, in the course of which he made a good many notes. He has sent these notes to this Court under cover, and they indicate that he made on those days a very careful and conscientious investigation of the locality, such as would properly be made by a person whose duty it was to get at the facts with a view to lay them before some tribunal, but the information which he sought and obtained was not guarded by the safeguards by which statements on which a Judge or Magistrate exercising judicial functions can act must be guarded. On the 13th of March the accused persons were brought up before Mr. Radice, and on that and the next day, and again 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 were examined 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 an application was made to Mr. Radice on behalf of the accused, that all notes and memoranda which he had made in the course of the investigation might be made part of the record, and that the parties might have copies of them. A good deal of discussion took place on the subject, and on the 5th Mr. Radice made this order: "Grant copy of petition. As to copies of my notes I will pass orders on the 16th. Put up them." On the 13th this rule was obtained from this Court, at the instance of the accused, to transfer the case from the file of the Assistant Magistrate to that of a Magistrate exercising first class powers, on the ground of the complexity of the case.
2. Mr. Radice has submitted an explanation to this Court, in which he tells us, amongst other things, that a transfer of the case from his file would cause great waste of time, and submits that a transfer is not necessary. With reference to the local enquiry he says:
"Mr. Earle, the Magistrate, refused to transfer this case from my file (I was then Assistant Magistrate 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 from ray file, on the ground of my having conducted the local enquiry, and that either side might desire to call me as a witness. It was decided that as I had prepared full and careful notes of everything done at the local enquiry it would, be sufficient if I were to put in these notes as evidence, and invite both parties to cross-examine me thereon."
I have looked at some of the evidence which has been taken in the case, and I must say that if such an amount of evidence and such an elaborate local enquiry was necessary to determine whether the timber was grown on the land of the Maharajah or on that of the Rani, it seems unfortunate that the District Magistrate should have removed the case from the file of Babu Shib Chunder Nag for the reason assigned, as if it is the case that the question between the zemindars is one of such complication and difficulty, it could hardly be possible to convict the servants 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 to discharge this rule, on the ground that the local enquiry was not necessary at all, 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 not to endeavour in such a case to decide questions of title or boundary. On further consideration, however, I have come to the conclusion that we cannot allow Mr. Radice to proceed further with the trial of this case, and I have been forced to that conclusion mainly by what he has himself said in his explanation to this Court. Mr. Radice evidently considers the local investigation to have been of the greatest importance, and he feels, and no doubt properly, that he is not in a position to act judicially upon the information which he obtained in the course of it; but he thinks, after consultation with the District Magistrate, that the difficulty caused by the mode in which the local enquiry was conducted may be avoided by his putting in his notes as evidence, and by his allowing either the prosecution or the defence to cross-examine him upon them. It is in my opinion absolutely impossible for us to countenance anything of the kind. Such a proceeding is not contemplated 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 the people in the administration of justice. It may be that there are cases in which it is desirable that a judicial officer should see the place in which an occurrence which is the subject of a judicial investigation before him has taken place, in order to enable him to understand the evidence which is laid before him, but when an officer visits a place for this purpose he should take care that no information reaches him with reference to the occurrence which he is to investigate beyond what he acquires from the view of the place, and when there is a dispute as to the exact spot in which the occurrence is said to have taken place, he will be wise to defer his visit to the spot until he has heard the whole of the evidence, if under such circumstances he feels disposed to visit it at all. There may also be another kind of local enquiry which an officer may sometimes be called upon to hold I mean an enquiry which, for the sake of convenience, he holds at the place where the occurrence took place, and not in his own Court; but such an enquiry, wherever it is held, is the trial of the case, and no evidence can be received at it, unless it is protected by all the safeguards by which evidence oft which a Judge may act is protected by law. It is evident that the local enquiry held by Mr. Radice in this case was something very different from either, of these, and was one in which he acquired a large amount of information with reference to the occurrence on which he had to arrive at a judicial determination, which, by reason of the mode in which he had acquired it, he cannot properly and legally consider in arriving at his ultimate decision. I do not believe it would be possible for any man in coming to a conclusion of fact under such circumstances, to separate the evidence which was properly before him from the information he had acquired on the spot, so that he could say that his mind was not influenced by such information, and when the officer tells us, as he does here, that he has acquired such information, I think it is impossible for us to allow him to proceed with the trial. I wish to add that though Mr. Radice has fallen into this error with reference to the nature of a local inquiry when held by a judicial officer in the course of a judicial enquiry, his notes of the local enquiry and of the evidence taken before him indicate to my mind a conscientious desire on his part to spare himself no trouble, but to make the investigation entrusted to him as complete and at the same time as fair as possible.
3. The rule will be made absolute to remove the case from his file to that of some Magistrate of the first class, but the selection of the particular officer must rest with the District Magistrate.
Rampini, J.
4. I agree with the learned Chief Justice that this rule must, for the reasons assigned by him, be made absolute. I further agree with him in considering that the Assistant Magistrate who entered on the local enquiry made by him only under the orders of his superior officer, the District Magistrate, has throughout acted conscientiously and exhibited an anxious desire to deal fairly with both parties to this litigation. But the fact of his having made the local enquiry he did make, in which he collected information with regard to the boundary between the Maharajah's and the Rani's properties and the cutting of the logs, and in which he actually searched for and found some of the logs claimed as stolen property, renders it impossible for him to try this case judicially. The suggestion which he makes after consultation with the District Magistrate that he should enter the witness-box and be examined and cross-examined by the pleaders of the parties is one which it is impossible, and which it would be illegal, for him to carry out. It has been frequently ruled by this Court that when a Judge is the sole Judge, both of law and fact, he cannot give evidence before himself, see Empress v. Donnelly I.L.R. 2 Cal. 405. Further I may point out that there is no section of the Criminal Procedure Code which authorises a Magistrate to make such a local investigation into a case tried by himself as was made by the Assistant Magistrate in this case. Section 148 provides that the District Magistrate or Sub-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 the peace regarding tangible immoveable property, and that the report of such Magistrate may be read as evidence in the case. Section 202 authorises a Magistrate when, after examining a complainant, he sees reason to distrust the truth of the complaint to postpone issuing process against the accused, and either to enquire into the case himself, or direct a previous local investigation to be made by any officer subordinate to him, or by a Police officer, or by such other person, not being a Magistrate or Police officer, as he sees fit. Section 293 directs that in the course of a sessions trial, when it is considered desirable that the jury or assessors should view the place where the offence is alleged to have been committed, they may be conducted to the place under the care of an officer of the Court, and when the view is finished they must immediately be conducted back into Court, without being allowed to speak to anyone. These are the only sections of the Criminal Procedure Code which allow of local investigations and local inspections, and it is clear that the sort of local enquiry made by the Assistant Magistrate in this case was not one contemplated on authorised by any of them. It is very desirable. I think, that Magistrates should bear these sections in mind when pressed, as they constantly are to make local investigations into cases coming judicially before them.