Athar Hussain and another vs King-Emperor

Jwala Prasad, J.—The petitioners have been convicted and sentenced to one month''s rigorous imprisonment each by the Honorary Magistrate of Dinapore u/s 323, I. P. C. The petitioner No. 1 is the father of petitioner No. 2. The complainant Asgar Hussain is the brother of petitioner No. 1. Between the two brothers there is no love lost. The complainant had on previous occasions brought cases of theft and assault against the petitioner No. 1, which were however dismissed.

The present case was brought by the complainant on the allegation that on the 27th September last at 7 A.M., the petitioners waylaid the complainant while he was going on an Ekka to Manair Thana to lodge an information against the petitioners of having committed theft in his house on the night previous, in order to prevent him from going to the thana. The complainant received nine injuries on his person. The Magistrate held that the complainant proved his case of assault against both the petitioners and accordingly convicted them.

The petitioners contend that the order of the Magistrate is vitiated by the fact that he did not keep on record any note of the result of the local inspection which he held. It appears that after the close of the case for the prosecution and the defence, and at the request of the prosecution the Magistrate inspected the place of occurrence and has referred to it in his judgment after discussing the evidence of the prosecution in the following words: "I inspected the scene of occurrence and I am convinced that Asgar was first beaten near the Imambara and then down the lane."

In his explanation the Magistrate says that he did not import anything in the judgment which is not in the evidence and therefore did not think it necessary to write an inspection report and that there is no provision in the Code of Criminal Procedure making it obligatory on a Magistrate to do so.

In the evidence of the prosecution witnesses it was stated that the place of occurrence is west of the inhabited portion of the village, particularly the houses of the complainant and the petitioners, and that there is a ditch to the west of it. It is contended on behalf of the petitioners that the complainant''s case, that he was going towards the west from the place of occurrence to thana, is impossible inasmuch as the Ekka could not possibly cross the ditch and that there was no wheel track for an Ekka towards the west to the thana but to the west of the village, the way by which the Sub-Inspector himself is said to have come to the village on an Ekka after the information was lodged.

The petitioners in para. 7 of the petition to this Court say that they showed this to the Magistrate when he was inspecting the locality. The Magistrate disposed of it by his observation in the judgment in the passage quoted above. Though there is no provision in the Code of Criminal Procedure for making local inspection or for keeping a note of the inspection if made, it has been settled by authorities that a Magistrate must invariably put on record a note of his inspection, vide Babbon Sheik Vs. Emperor, .

The passage quoted above clearly shows that the Magistrate has used the knowledge derived by him from his inspection of the locality. The accused has, therefore, been prejudiced by the omission of the Magistrate to place on record a note of his inspection. I would, therefore, set aside the conviction and order a retrial of the accused by the same Magistrate from the stage just before he inspected the locality. The Magistrate will again inspect the locality in the presence of the parties out make a note of what is pointed out to him by the parties particularly whether an Ekka could go towards the west of the village to the thana as alleged by the prosecution and challenged by the defence.

The learned counsel on behalf of the accused urges that the retrial ordered by this Court should not be held by the same Magistrate, but by some other Magistrate. I do not see any reason for acceding to this suggestion for there is nothing to show that the Magistrate has shown any bias against the accused. The omission to place on record a note of his inspection was only an error of judgment.

After the local inspection, the Magistrate will hear the parties and then record a fresh judgment in the case. In the meantime the petitioners will remain on the same bail.