Authored By : S.C. Ghose, Hamilton Wincup Gordon

S.C. Ghose and Hamilton Wincup Gordon, JJ.

1. We are unable to agree with the Sessions Judge in theviews he has expressed. The offence, with which the accused was charged was onewhich fell under Section 341 or 342 of the Penal Code. It was a summons case;and the Joint Magistrate, before whom the complaint was made, held, underSection 202 of the Criminal Procedure Code, an enquiry for the purpose ofascertaining the truth or falsehood of the complaint before issuing processagainst the accused. After holding such enquiry, he summoned the accused, andthen after examining such witnesses as either party adduced, and a witnesscalled by himself, found the accused guilty under Section 341 of the PenalCode. We do not think that there is anything in the Code of Criminal Procedurewhich disqualifies a Magistrate, who holds a preliminary enquiry under Section202 of the Criminal Procedure Code from trying the case himself; and theprovisions of Section 555 have, we think, no application to the circumstancesof this case. The two cases quoted by the Sessions Judge, Girish Chunder Ghosev. Queen-Empress I.L.R. 20 Cal. 857 [LQ/CalHC/1893/22] and Sudhama Upadhya v. Quern-Empress I.L.R.23 Cal. 328 [LQ/CalHC/1895/118] proceed upon the principle that when a Magistrate initiates ordirects the proceedings against an accused person and takes an active part inthe arrest of or collection of evidence against such person, he is disqualifiedby reason of the provisions of Section 555 of the Criminal Procedure Code fromtrying the ease himself, and that a disqualifying interest as contemplated bythat section may result from a purely official connection with the initiationof criminal proceedings. In the present case that principle is not applicable.Here, the complaint was in the ordinary course made before the Sub-DivisionalOfficer; be held an enquiry as authorized by Section 202 of the Code, and eventually,upon the evidence recorded in the presence of the accused, found him guilty.There is nothing to indicate that he initiated or directed the proceedings ortook any personal interest in the matter of the complaint instituted beforehim, and we do not think that he was disqualified in any way from trying thecase.

2. It was perhaps irregular on the part of Mr. Gupta, theJoint Magistrate, in calling for and examining a witness after the evidence onboth sides had been taken and the case adjourned for judgment; but it does notappear to us that the accused was in any way prejudiced by the action of theMagistrate, and indeed it may well be said that he (the Magistrate) wasstrictly within his rights under Section 540 of the Code, for the case wasstill a pending case, when the fresh evidence was taken.

3. Upon these grounds we decline to interfere in thismatter.

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Ananda Chunder Singhvs. Basu Mudh (30.10.1896 -CALHC)