Authored By : S.C. Ghose, C.H. Hill

S.C. Ghose and C.H. Hill, JJ.

1. The circumstances under which we granted this rule werethese : On the 4th June last the Mahomedan festival of Bakr Id, a somewhatserious riot took place at Kindwa, a village near Barrakar and adjoining theworks of the Bengal Iron Steel Works Company, in the course of which themosques of the village were invaded by a large body of armed Hindus, theworshippers ejected, and many of them injured. From the sketch of theoccurrence of the day, given in his judgment by the Magistrate who afterwardstried the persons accused of complicity in the riot, we derive the followingparticulars : In the early morning of the 4th June information was given to themanagers of the above mentioned company that there was a likelihood of adisturbance taking place between the Hindus and Mahomedans of the village, inwhich it appears a large number of the companys employees live. The managersdid what they could by communicating with the leaders of the two communities toavert a collision, and Mr. Glover, one of their number, with the same object inview, proceeded from the factory to the village. He found the market placeoccupied by a large and excited crowd. He ascertained from the proprietor ofone of the mosques that it was not intended to depart from the usual practiceas to the place of sacrificing cows, and then having given orders that all thecompanys servants should go within the works he returned to the factory. At 10oclock the services in the mosques of which there are two in the villagebegan. Shortly afterwards, just as the nemaz had concluded in one of these andthe sermon was about to begin, a considerable body of Hindus armed with lathisand stones approached and began to throw stones into the building. Some of theworshippers were struck. The Hindus then entered the precincts of the mosques,and some of those within were beaten while others were struck with stones andlathis as they made their escape. Having emptied this mosque of itscongregation, the Hindus proceeded to the other. The service had not yetconcluded and there a similar scene was enacted. The door of the mosque wasbroken open and the worshippers were expelled, some of them being beaten withinthe building and some struck with stones and lathis as they escaped. Havingdriven the Mahomadens from their places of worship the Hindus graduallydispersed, and by noon quiet was restored in the village. Meanwhile informationof the riot had been carried to the police at Barrakar, and several telegramshad been sent to the Sub-Divisional Officer at Ranigunge, and at about 2oclock in the afternoon of the same day that officer, accompanied by anInspector of Police, arrived on the scene. As they did so they perceived anumber of men armed with lathis congregated on some high ground opposite one ofthe mosques. They dispersed, however, and ran as soon as they saw the police,but the police gave chase, and in the course of the pursuit made elevenarrests. During that afternoon and on the following day thirteen other personswere arrested on the charge of having been concerned in the riot of the morningof the 4th June.

2. Eventually the twenty-four persons thus arrested wereplaced upon their trial before the Assistant Magistrate of Ranigunge uponcharges under Sections 143,147, 296 and 323 of the Indian Penal Code. One ofthem died before trial, and one was acquitted by the Assistant Magistrate. Ofthe remaining twenty-two the majority was convicted of having taken part in theriot of the morning of the 4th June. Four were convicted likewise under Section296, three under Section 323, and eleven were convicted under Section 143 ashaving been members of the unlawful assembly of the afternoon, in thedispersion of which the police took part. There was then an appeal from thejudgment of the Assistant Magistrate to the District Magistrate of Burdwan,which resulted in the reversal of all the convictions under Section 143. Two ofthe accused, who had been convicted by the Assistant Magistrate under thatsection only, were accordingly acquitted. In the case of six others of theaccused who had been convicted under Section 147 as well as Section 143, theDistrict Magistrate held that the convictions under the former section werealso unsustainable and acquitted them on both charges. In the case of theremaining fourteen he upheld the conviction. It was on the petition of thesefourteen persons that we issued this rule, and the position taken by them isthat their conviction by the Assistant Magistrate was illegal and hisproceedings void, inasmuch as he was disqualified under the provisions ofSection 555 of the Code from trying them by reason of his being personally interestedin the case and not having obtained the permission for which the sectionprovides. The plea is founded upon the action taken by the Assistant Magistratein connection with the proceedings of the police which followed upon the riot,and it becomes necessary therefore to inquire what part the AssistantMagistrate actually took in those proceedings. He has himself assisted usmaterially in the consideration of this question by a statement which he placedupon record in which he describes in some detail the steps taken towards theapprehension of the rioters and the course of the police investigations whilehe was present on the scene on the 4th and 5th June. We think it right to saythat this statement was not made by the Assistant Magistrate as a witness inthe case; that is to say, it was not made upon oath, and the AssistantMagistrate was not cross-examined upon it; but he explains that he conceived itto be his duty in the interest of the accused that the extent to which he hadbeen concerned in the case in its earlier stages should be known, and heaccordingly wrote out the statement and placed it upon record.

3. From it we learn that the Assistant Magistrate washimself the Sub-Divisional Officer (of whom mention has been made above) who,accompanied by the Inspector of Police, arrived at Kindwa in the afternoon ofthe 4th June. On his arrival he was met by the proprietor of one of the villagemosques, who took him to his mosque, and from there pointed out to him a bodyof armed Hindus. Under his orders the police went in pursuit of these men andhe witnessed their flight. While the pursuit continued he remained among theMahomedans inquiring from them what had happened, and a number of Mahoroedanswho had been injured were shown to him. He then followed the police and came upwith them in the neighbourhood of the factory, where he found eleven men in thecustody of the police with a bundle of lathis lying beside them. These were theeleven persons who wore afterwards convicted by the Assistant Magistrate underSection 143 of the Penal Code. He next went to the factory where the officialswere questioned by the Inspector of Police, and he himself conversed with someof the European staff about the riot. Soon afterwards some five men werearrested by the police in his presence apparently in consequence of informationreceived from the factory staff. The Assistant Magistrate mentions the names oftwo of those persons, Daswant (since deceased) and Sudhama, and it appears fromthe evidence of the Inspector of Police that these two persons were named tohim by Mr. Harris, one of the managers of the factory, while Mr. Barrett,another of the factory staff, gave him the names of three others, Ram SukulPaure, Dudnath, and Gopi Mistri. Three out of these five persons are among thepresent petitioners. From the factory the Assistant Magistrate went to themanagers house and from there to the village. In the village he found theInspector of Police pursuing his inquiries. He saw several wounded men there,and particularly examined one of them whose arm, it was said (but untruly), wasbroken. He further took the statement of one of the accused, of which of thorndoes not, however, appear. Then on the information of a Mahomedan he went withsome chowkidars to a house near the market place and searched it. He found fourmen in hiding the names of two of whom, Durga and Debi, he mentions. He broughtthem out of the house and directed the Inspector of Police to arrest them. Hepassed the night of the 4th June at the house of the manager of the factory,and next morning went again to the village where he found the Inspector ofPolice continuing his inquiries. He sat some time with the Inspector, butstates that he then took no part in the investigation. Again, in the afternoon,however, he was with the Inspector while the inquiry was proceeding, and onthis occasion "took the statement of another Babu." He then took theInspector with him to the factory where some of the Europeans made statementsto the Inspector in his presence, notes of which were made, and then two morearrests were made in his presence. He then left the factory and returned toRanigunge, and so his connection with the investigation concluded.

4. In the circumstances disclosed by this statement it seemsto us that there can be but one answer to the question now before us. Itappears to us impossible that the Assistant Magistrate could have brought tothe trial of the case a mind devoid of preconceived impressions founded uponhis own personal knowledge regarding the guilt of the accused. Eleven of thealleged rioters, of whom nine are now before this Court, were arrested in hispresence; some of them in consequence of information given either directly tohim or in his hearing by the factory staffs. Four of their number were tracedby him on information received from one of the opposite party to the placewhere they had concealed themselves and then arrested under his orders : Heintervened at various stages of the subsequent police inquiries, and himself recordedthe statements of two persons, one of whom was an accused person, and withoutgoing into further detail it appears to us clear from the whole tenor of hisstatement that, while the investigations of the police were nominally in thehands of the Inspector of Police, they were from the outset directed to a veryconsiderable degree by the Assistant Magistrate. Under these circumstances wecertainly think that the Assistant Magistrate ought not to have tried the case.Indeed, we do not hesitate to say that he was disqualified from trying it bythe provisions of Section 555 of the Code of Criminal Procedure. That adisqualifying interest may result from a purely official connection with theinitiation of criminal proceedings seems to us to be clear, and the same viewwas taken in the case of Girish Chunder Ghose v. The Queen-Empress I.L.R. Cal.857, in which the Magistrate, as in the present case, took an active part inforwarding the police inquiries and collecting evidence against the accused.The learned Judges, who dealt with the case in this Court, quashed theconvictions on that ground, observing in the course of their judgment: "He(the Magistrate) may also, we think, be said to have been personally interestedin them "(the proceedings)," for the word personally in Section 555does not, we think, mean merely privately interested or interested as aprivate individual, but includes such an interest as the District Magistratemust in this case have had in the conviction of the accused [see the case of Inre Het Lall Boy 22 W.R. . 75)." In this view of the meaning of Section 555we entirely agree, and we think that there is quite enough in the materials nowbefore us to justify the conclusion that the Assistant Magistrate was in thesame sense interested in the result of the present proceedings.

5. It was, however, contended that, granting thedisqualification of the Assistant Magistrate, we were precluded under theprovisions of Section 537 of the Code from setting aside his order, unless itwere shown that a failure of justice had resulted from his being personallyinterested in the case. We do not think that this contention is sustainable.The saving provisions of Section 537 extend only to the orders and so forth ofCourts of competent jurisdiction; and in our opinion a Magistrate who inconsequence of a personal disqualification is forbidden by law to try aparticular case, though he may be authorized generally to try cases of the sameclass, cannot be said with respect to that case to be a Court of competentjurisdiction. Section 537 has therefore in our opinion no application to thepresent case, and it must be dealt with on the footing of its having been triedby a Court which for want of jurisdiction was incompetent to deal with it.

6. We accordingly set aside the convictions and sentences,but we think that in the case of those of the petitioners who have not alreadyserved their full term of imprisonment, there must be a new trial by suchMagistrate, other than the Magistrate who has already tried them, as theMagistrate of the District may appoint. In the event of the trial resulting inthe conviction of any of the accused the Magistrate will, in awardingsentences, take into account the imprisonment they have already undergone.Those of the petitioners who have already served their full terms ofimprisonment will not be retried.

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Sudhama Upadhya and Ors.vs. Queen-Empress (20.11.1895 -CALHC)