Mangni Lal Marwari vs Emperor

Jwala Prasad, J.—The petitioner in this case has been convicted by the Sub-Deputy Magistrate of Chattra exercising 2nd Class powers u/s 352 of the Indian Penal Code and sentenced to pay a fine of Rs. 50. The conviction and sentence have been upheld in appeal by the 1st Class Magistrate of Hazaribagh.

The trying Magistrate imported into the judgment his knowledge gained by making enquiries out of Court without giving notice to the parties, as a result of which be 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 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 enquiries 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"

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 enquiry from the witness made by the Sub Deputy Magistrate. The Appellate Court, however, does not refer to the general enquiry 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 enquiry. He was also not competent to hold any enquiry 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 enquiry. u/s 556 of the Code of Criminal Procedure he became personally interested in the result of the case however small that interest may be.

In the case of Queen-Empress v. Manikam 19 M. 263 : 6 M.L.J. 143 : 2 Weir 735 : 6 Ind. Dee. 888 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 3 I.A. 259 : 26 W.R. 55 : 3 Sar. P.C.J. 611 : B. 25 : 3 Suth P.C.J. 304 Rafique &. Jackson''s P.C. No. 41 (P.C.). 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 20 C. 857 : 10 Ind. Dec.577 and in Hari Kishore Mitra v. Abdul Baki Miah 21 C. 920 : 10 Ind. Dec. 1245. In the notable case of Serjeant v. Dale (1877) 2 Q.B.D. 558 : 46 L.J.Q.B. 781 : 37 L.T. 153 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".

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 enquiry 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 enquiry 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.

Roe, J.

I am not prepared to say that the Appellate Court in this case was bound to refer the matter for 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 3 I.A. 259 : 26 W.R. 55 : 3 Sar. P.C.J. 611 : B. 25 : 3 Suth P.C.J. 304 Rafique &. Jackson''s P.C. No. 41 (P.C.), in which at page 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 retrial by another Court but decided the case upon its merits on that part of the record actually admissible in evidence. In my view the matter falls rather within, Section 167 of the Evidence Act than Section 556 of the Criminal Procedure Code-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.