1. This is an application for revision of an order of the Joint Magistrate of Benares, convicting the applicant of evading the payment of octroi, an offence punishable under 69 of the United Provinces Municipalities Act, and sentencing him to pay a fine of Rs. 20. It has been contended before me that the articles in respect of which the applicant has been convicted are not subject to octroi. In view of the order which I am about to pass, I express no opinion upon this point. The question which 1 have to decide is whether the Magistrate had jurisdiction to try the case. In his order he says: 'I would note that at the first hearing I asked counsel for the defence to apply for the transfer of the case as the prosecution had been initiated by me ex-offlcio as the President of the Octroi Sub-Committee. He elected to let the case remain in this Court.' It is quite clear that if the case falls within 556, Criminal Procedure Code, as is now contended by the applicant, the Magistrate was debarred from trying the case, and consent of the applicant could not confer jurisdiction upon him. The only facts which need be stated are that some correspondence passed between the applicant and the Octroi Superintendent ending with a letter from the applicant, dated the 2nd of March, 1910, in which he declined to give any further information. The whole correspondence was then laid before Mr. A. P. Collett, who was President of the Octroi Sub-Committee of the Municipal Board. The file does not show that the papers were laid before him as President of that Sub-Committee ; but the fact is admitted and there can be no doubt about it. On the file he wrote as follows: 'Whether the goods are dutiable or not, it seems that the importer's correct procedure was to pay and then appeal to the Board. If the importer still persists that the goods are not dutiable, it is a question best decided by a Court, and he should be prosecuted in order to have it finally settled.'
2. On that the Secretary of the Board noted at once 'prosecute,' and sent the papers to the Octroi Inspector who made them over to a mukhtar in order that a complaint might be drawn up. The complaint was ultimately presented to Mr. Collett. It is quite clear to me that Mr. Collett's order was intended to be and was understood to be an order for the prosecution of the applicant. It is not a case like that of Emperor v. Mohan Lal 27 A. 25, in which the Magistrate concerned was merely one of a body of members of the Municipal Board who did not direct the prosecution but merely handed in a recommendation upon which the Chairman of the Board took action. In that case, Knox J., referred to and distinguished the case of Emperor v. Ahmad Husain decided by the present learned Chief Justice. He observed that in Ahmad Husain's case, it was alleged that the Joint Magistrate who tried the case was the Chairman of a special meeting of the committee which ordered the prosecution of the accused. The present case is stronger than that of Ahmad Husain, for Mr. Collett does not seem to have acted with the sub-committee, but aline and on his own responsibility. It was contended that the case fell rather within the explanation to 556 than within the illustration to that. The difference between the two classes of cases was pointed out by Strachey, C.J., in Inayat Husain A.W.N. (1899) 74. In the course of his judgment he says: It has, however, been contended that he is disqualified on the ground of the principle embodied in the new illustration to 556. That illustration is as follows: 'A, as Collector upon consideration of information furnished to him, directs the prosecution of B for a breach of the Excise Laws. A is disqualified from trying this case as a Magistrate.' The illustration simply embodies the principle that a man cannot be both Prosecutor and Judge in the same case. What the shows is that if a Magistrate or a Judge is merely connected with a case by reason of his discharging some other public function, or is concerned with it in some public capacity he is not, on that ground, alone to be deemed personally interested in the case. But if, in addition to a connection of that sort, he, in some capacity outside his Magisterial or judicial functions, orders or directs the prosecution of a person for an offence, then he is deemed to be personally interested in the case and he cannot try it as Magistrate or Judge. The distinction is between having merely some public or official connection with a case and ordering or directing the prosecution in some extrajudicial or extra magisterial capacity.' In the present case as I have said, the Magistrate ordered the prosecution of the applicant. I cannot accept the suggestion that the prosecution was directed by the Secretary. He treated Mr. Collett's endorsement as an order to prosecute and merely set the machinery in motion. In accordance with the decisions which I have mentioned I hold that the Magistrate in this case must be deemed to have been personally interested within the meaning of 556, Criminal Procedure Code, and, therefore, was not qualified to try the case of the applicant. I set aside the conviction and direct that the case be re-tried by the District Magistrate or by some competent Magistrate nominated by him.