1. In this case certain persons--five and more in number--were convicted of rioting under Section 147 of the Indian Penal Code, in that they forcibly entered upon the land of one Kandikkarappan and there committed mischief by destroying some of his young paddy plants. It appears that on the day after the complaint in the case was filed, the Second-Class Magistrate who tried the case went to make a local inspection of the scene of the alleged offence, not because he distrusted the truth of the complaint, for he had issued process against the accused, but apparently for the purpose of seeing what damage was done. The following is the account given by the Magistrate of the result of his inspection: 'As alleged in the complaint the said two fields were in a very disorderly and pitiable state. The young paddy plants and sprouts in the said fields were lying trodden down. There were innumerable pits in the field caused by the feet of the people. A greater part of the said fields was dug up with spades and several heaps of earth were lying promiscuously all over the said fields. The spectacle was truly pitiable.' The Magistrate then proceeds in his judgment to say. 'Under the above circumstances the thoughtless attempt made by the defence to prove that no mischief wits committed to the plants and sprouts of paddy in the fields in question is utterly futile. Nothing has been adduced by the accused or their witnesses to show how the said seedlings and sprouts in the said fields were damaged. The whole defence therefore falls to the ground.' In the appeal against the conviction to the Court of the Head Assistant Magistrate, Trichinopoly, objection was taken to this inspection by the Magistrate, on the ground that the Magistrate was making himself a witness in the case and that his evidence should therefore have been open to cross-examination and also that the Magistrate, after conducting such a local enquiry, should not have tried the case. The objections were overruled by the Head Assistant Magistrate, because he found that the Magistrate's evidence was not the only evidence on the point and because he considered that the Magistrate was perfectly right in satisfying himself that the complaint was well founded. It is clear from the facts stated that the Magistrate's view of the locus in quo was what influenced him in finding that the complaint of actual damage being caused was true and that the defence, that no damage was caused, was false. The question now before us is whether the Magistrate, having made himself a witness in the case, rendered himself incompetent to try the case. The Privy Council has observed in Hurpurshad v. Sheo Dyal L.R. 3 IndAp 259: 'It ought to be known, and their Lordships wish it to be distinctly understood, that a Judge cannot, without giving evidence as a witness, import into a case his own knowledge of particular facts.' There is no provision in the Code of Criminal Procedure which authorizes a Magistrate to make a local inspection in a case which is being tried by himself, and therefore there is no provision as to what is to be done in regard to his examination, in case he should make such local inspection by which he becomes personally acquainted with relevant facts in the case, such as is made in Section 294 of the Code, in the case of a juror or assessor who his personally acquainted with any relevant fact, that is for his being sworn, examined, cross-examined and re-examined in the same manner as any other witness. As it is not possible, therefore, for the Magistrate to be so examined in a trial held before himself, it follows that he cannot comply with the rule of the Privy Council requiring that he should give evidence as a witness. That being so, we agree with the Calcutta High Court in holding that when a Judge is the sole Judge both of law and fact, he cannot give evidence before himself and that the accused are entitled to have nothing stated against them in the judgment which was not stated on oath in their presence and which they have no opportunity of testing by cross-examination and of rebutting. See Girish Chunder Ghose v. Queen-Empress I.L.R. 20 Cal. 857 and Hari Kishore Mitra v. Abdul Baki Miah I.L.R. 21 Cal. 920. 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. See Serjeant v. Dale I.L.R. 2 Q.B.D. 558 . The learned Judges Mellor and Lush, JJ., therein observed that 'the law in laying down this strict rule has regard not so much perhaps to the motives which might be supposed to bias the Judge as to the susceptibilities of the litigant parties. One important object, at all events, is to clear away every thing which might engender suspicion and distrust of the tribunal and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security. Although the law makes no provision for a local inspection by a Magistrate of the locus in quo in a case being tried by himself, we do not go the length of saying that under no circumstances may local inspection be made. But we are satisfied that such inspection should only be made for the purpose of enabling the Magistrate to understand the better the evidence which is laid before him, and it must be strictly confined to that. This is the view taken by the learned Chief Justice (Petheram, C.J.) of the Calcutta High Court in the case already quoted. Hari Kishore Mitra v. Abdul Baki Miah I.L.R. 21 Cal. 920 . To this we would add that when any inspection is made with the object stated, the Magistrate should invariably be accompanied by both parties or their representatives.
2. Holding as we do for the reasons above given that the Second-class Magistrate rendered himself incompetent to try this case, we must set aside the conviction and sentences of fine and direct that a new trial be held by another Magistrate in the case of those of the accused whose conviction was confirmed by the Appellate Court.